The following opinion was delivered :
By the Chancellor.If the judgment of the supreme court was right in substance, it seems to be incorrect in point of form. The judgment being reversed on a bill of exceptions taken at the trial, the plaintiffs were probably entitled to a venire de novo, to enable them, if possible, to' supply the deficiency in their proofs, on a new trial. But as this question was not raised before the supreme court, and was probably a mere mistake in making up the record there, it forms no ground for reversing the judgment in this court.
On a careful investigation 'of this case upon the merits, however, I have arrived at the conclusion that the judgment in the court of common pleas was correct, and that it ought to have been affirmed in the supreme court. The decision of the latter court appears to proceed upon the ground that the abandonment of the premises by Betts on the 16th of April, 1828, amounted to an abandonment by the plaintiffs, and destroyed their rights under the agreement. It is very evident, however, that such was not the understanding of the parties, or the *180effect of the several agreements for the leasing and sub-letting j.jje premjseSt The agreement between the plaintiffs and the defendant was for a holding from year to year, so long as thought proper to .continue their tenancy, subject to the right of the landlord to terminate the lease, at any time after the éxpiration of the first year, by paying the $50 laid out in alterations and repairs. The provision in the lease was that the lessees might occupy the. premises, not for so long a period,but/or so many years as they should think proper, showing clearly that they were to occupy as tenants from year to year subject to the right of the defendant to terminate the lease at his own will. Having continued tenants of the premises for eleven and a half months of the last year, they were bound to pay rent for the whole year; and were therefore constructively in the possession, by themselves or their sub-tenant, during the whole of that year, unless the defendant has terminated the tenancy by an entry under the power reserved to him in the lease.
Although Betts had the right to occupy the premises, and was bound to pay rent, for the benefit of the plaintiffs, at the same rate which they had‘agreed to give, yet it is evident from his testimony that he was only sub-tenant to them. He refused to take an assignment of the lease, so as to give him the right to terminate the same before the expiration of the seven years, or to entitle himself to the $50. He paid the rent to the defendant, but he did so as the agent of the plaintiffs,-according to the understanding between the parties, and for a part of the time he actually took the receipts for the rent in the names of the plaintiffs. He was therefore a mere sub-lessee, without power to deprive the plaintiffs, his immediate landlords, of any of their rights. If the defendant, therefore, went into possesssion of the premises by the consent or permission of Betts, and not under the authority reserved in the agreement, he was substituted in the place of Betts as the sub-tenant of the premises for the remainder of the term; and his possession was the possession of the plaintiffs for the residue of the seven years, under the original agreement. See Piggott v. Mason, 1 Paige’s R. 415. The payment of the rent, or the' offer to pay it, was not a condition precedent to the recovery of the fif*181ty dollars. If any rent was due, it could only avail the defendant by way of offset. But here was no rent due, even if the term continued until the expiration of the year. It was all paid up to the 16th of April, when the defendant took possession; and if he took possession under Betts, as the sub-tenant of the plaintiffs, he was liable to the plaintiff as their sub-tenant, for precisely the same amount as they would have been liable to him under the original lease; and as Betts’ agreement was to pay the rent to the original landlord, for the benefit of the plaintiffs, the law in this case would make the application, to prevent circuity of action.
If the defendant did not take possession of the premises by the consent or permission of Betts, as the sub-tenant of the plaintiffs for the residue of the term, he must have entered, either as a trespasser, or by virtue of the power reserved to himself in the lease; and where a party has a legal right tó enter into possession of land in one character, or under one title, the law will presume that he entered in that character, and under that title, and not in the 'character of a mere trespasser. Matthews on Pres. Ev. 26. 2 Coke Litt. 232.
In any view of this case, therefore, I think the plaintiffs were entitled, both legally and equitably, to the $50, and that the only objection to the charge of the court of common pleas was, that it was more favorable to the defendant than it should have been. I think the facts of the case would have justifi- ' ed the court in telling the jury that they ought to find a verdict for the plaintiffs, if they believed the repairs had been made according to the agreement.
The objection that the plaintiffs did. not produce the separate article, relative to the repairs, is wholly untenable, and I presume was so considered by the supreme court. There is no evidence that any written article was ever made relative to the repairs, other than that contained in the agreement itself. It evidently means, such alterations and repairs, to the amount of $50, as should thereafter be agreed upon between the parties, or specified by the landlord; and I think it may fairly be inferred from the evidence, that the alterations and repairs had been fixed upon by a parol arrangement between the parties,. *182as the defendant admitted they had been made by the plaintiffs, according to the agreement.
If the court should concur with me in opinion, the judgment of the supreme court must be reversed, and that of the common pleas affirmed, with the costs of the surviving plaintiff in error, both in this and in the supreme court.
On the question being put, Shall this judgment he reversed? the members voted as follows :
In the affirmative—The Chancellor, and Senators Fuller, Lynde, Mather, Maynard, Rexford, Sanford, Sherman, Warren and Westcott, 10.
In the negative—Senators Allen, Armstrong, Bronson, Conklin, Deitz, Gere, McLean, Tallmadge and Throop, 9.
Whereupon the judgment of the supreme court was reversed, and the judgment of the common pleas affirmed, and the defendant in error directed to pay the costs both in the supreme court and in this court.