By. the Court,
Cowen, J.It is clear, that as between the now defendant and Ferguson, the lessor, the deed of February 28th, 1835, related back to the 4th of October, 1833; and from that time divested all title of Ferguson to that part of the demised premises included in it. The plaintiff claiming under him must, therefore, abide the legal consequences arising from Ferguson’s failure of title. The plaintiff stands in Ferguson’s place, being his assignee; and both must be taken to have been pro tanto totally destitute of title, and of all right to demise and to hold as landlord, from the 4th of October, 1833. Here has been no eviction of the defendant, nor any act equivalent to an eviction by the plaintiff, from the whole or any part of the demised premises. The judge was right, therefore, in saying that no defence arose upon that ground. But the plaintiff lost his title subsequent to the giving of the lease, and the lessee acquired it as to part of the demised premises. Had he a right to acquire the title of his landlord, and set him at defiance ? So long as he is not expelled, he has, in general, no right to *123question his landlord^ title. He cannot deny that he had a right to demise at the time of the lease. He cannot defend, on the ground that he has acquired an outstanding title adverse to that of the landlord. But I am not aware that the estoppel goes farther. If the landlord part with his title pending the lease, the duty of the tenant, including that of paying rent, is due to the assignee; and should the tenant buy in the assignee’s right, the lease would be extinguished. So, should the landlord sell and release to the lessee. In these cases, no action would lie for the rent. Therefore, had there been a sheriff’s sale of the whole reversion in the demised premises, and the defendant had redeemed or purchased under the judgment, no action could have been' sustained; for a purchase or acquisition of title under a judgment against the lessor is the same thing as if he had granted by deed. It is, to be sure, acquiring title indirectly and by operation of law, from the lessor; but it comes through his act and consent, or his neglect, and is therefore the same in legal effect as if he had granted or devised the reversion.
But the title to only apart of the demised premises passed to the defendant. I do not say this on the ground that Ferguson’s wife who joined him as lessor must be taken to have been seized of seme portion, for her seizin must be deemed that of her husband, at least during the life of both; and during that time, her right was subject to be sold under execution for his debts. But the deed to the defendant covered only part of the demised, premises. His case was not, therefore, in any view, one of total defence ; and the judge was right in saying that the evidence could not be received as a bar to the action.
But I think the judge erréd in shutting out the evidence as totally impertinent. .It should have been received in mitigation of damages. The plaintiff, or rather his assignor, who, as I remarked, are in this case legally identical, having after the date of the demise, parted in effect with the reversion of a part of the demised premises, rent should have been recovered for the residue only. The rent is incident to the reversion, and follows the grant of it without *124express words. So, if the reversion in part of the land be granted, a proportional part of the rent follows. Gilb. on Rents, Dubl. ed. of 1792. In short, the evidence offered raised a case of apportionment. It is the same as if the lessor, or his assignee or other persons holding the reversion, should release his title in a part of the land to the lessee. This would extinguish the rent for so much; but, being by the act of the parties, the rent would be apportionable. It comes, in principle, to the case stated in Woodf. Land. and Ten. 252, Lond. ed. of 1804, citing Vin. Abr. Apportionment, B. 5, 12. Woodfall says; “ If lessee for years of land, rendering rent, accept a new lease from the lessor, of part of the land, which is a surrender of this part, the rent shall be apportioned; for this comes by the act of the parties.” The duty in question is a rent service, of which Gilbert remarks, that if a man who has such á rent, purchase part of the land out of which it issues, yet the rent shall be apportioned ; though otherwise of a rent charge, which is-wholly extinguished. Gilb. on Rents, 151, 2, Dubl. ed. of 1792. But he says in another place, even of the latter, that a release of part of the rent to the tenant of the land shall not extinguish the whole; but the rent shall be apportioned. Id. 163. Indeed, nothing is more reasonable than that, where both landlord and tenant participate in destroying their relation as to a part of the land, the rent should continue and be ap-portioned on the residue. It is the same thing, if that consequence be regarded in the case at bar as arising from the operation at law. See per Wilde, J. in Montague v. Gay, 19 Mass. R. 439, 440. It could not have arisen without their mutual participation.
The defendant’s counsel did not characterize his evidence, on the offer he made at the trial, by saying whether he intended it as a bar, or in mitigation. Had he presented it in the former character merely, the ruling at the circuit would have been proper." But the evidence seems to have been offered generally for what it was worth; and should not have been totally excluded. The decision of the judge went to that extent, probably on the ground that, during all the time when the rent claimed was running, the legal title *125to the whole was in Ferguson. It is in that alone we differ with him. The defendant’s right to a deed clearly arose on the 4th of October, 1833, before either of the two quarters’ rent claimed by this action fell due. The date of the deed of February 28, 1835, must be read as of the day when the deed became due. The principle of relation here is the same as if the now defendant had been the direct purchaser at a sheriff’s sale before the statute. There, though the sheriff sold at one day, and did not give a deed till afterwards, the law antedated it by inserting the day of sale. Jackson, ex dem. Noah, v. Dickinson, 15 Johns. R. 309. Evertson v. Sawyer, 2 Wendell, 507. Jackson, ex dem. De Forest, v. Ramsay, 3 Cowen, 75, and the cases cited in this last case by Sutherland, J.
On the whole, we think there must be a new trial. And if the rights of the parties be not changed, the question must be referred to the jury to make a just apportionment of rent upon that part of the demised premises which lie without the sheriff's deed. Gilb. on Rents, 189, Dubl. ed. 1792 ; and see the case of Hodgskins v. Robson, 1 Ventr. 276, which relates both to the principle and practice of apportionment. See also Gillespie v. Thomas, 15 Wendell, 464, 469, and the books cited by Mr. Justice Nelson at the latter page.
New trial granted; costs to abide the event.