The opinion of the court was delivered by
Hebard, J.The plaintiff seeks to recover possession of the premises in question, on the ground of the non-payment of the rent reserved in the lease from Penniman to A. & S. Hoffman, and the conveyance to him by Penniman, of all his title and interest in the premises. The first question is, can the plaintiff recover on the ground of the non-payment of the rent, which had accrued previous to Penniman’s conveyance to him? That rent had accrued to Penniman, and not to the plaintiff. The purchasing in of the title from Penniman extinguished his right to the rent due, or at least his right to re-enter, and maintain ejectment for the non-payment of it. That rent had been equally due from the plaintiff, and James Birney, or his representatives; and as payment of any part of the rent thus due from the plaintiff and James Birney, would have enured to the benefit of both, so the payment, in effect, which was made by the purchase of Penniman’s title, would enure to their common benefit. This action cannot, therefore, be maintained by the plaintiff, on the ground of the non-payment of rent which had accrued to Penniman.
It is equally clear that this action cannot be maintained for non-payment of rent after the conveyance from Penniman to the plaintiff, which was on the 24th of July, 1841, because, whatever liability for rent accrued after that time, it did not become due until the 16th of March, 1842, and, by the terms of the lease, the right of re-entry, and, of course, of maintaining ejectment for non-payment of rent, did not accrue until the expiration of six months from that, time— previous to which expiration this suit was commenced.
So far as the case shows, the defendant is only holding *141the premises for her children. It does not appear that she claims the land by purchase, or that dower in premises has been set out, or even that administration has been taken on the estate of James Birney. There seems, therefore, to be no ground on which this action can be sustained. There can be no doubt that those benefitted by the extinguishment of the back rent, can be compelled, in an appropriate action, to contribute to the plaintiff their proportion of it.
Judgment affirmed.