l. landlord liability of ' one fiajutiged to "be the legal owner. The whole law of this case, and that which is decisive of it, was contained in the first instruction of the court below to the jury, to wit: If, prior to the time plaintiff obtained his sheriff’s deed, the land had been conveyed to, 7 , '' or fold by? the heirs of Marietta .Bradley, who by their guardian had rented the same to defendant and placed him in possession, and if the said defendant had paid the rents in full to said guardian, then he (defendant) would not be liable for rents accruing prior to the decree confirming the title in plaintiff, nor would the fact of notice to defendant not to pay to the guardian affect his liability.
Defendant’s duty was to pay his rent to his landlord. Though plaintiff had commenced his action to perfect or quiet his title, he did not make the tenant (this defendant) a party, nor did he take any steps by injunction or otherwise to restrain him from paying over the rent. Defendant was not bound to retain the rent in his hands to await the result of this litigation, and especially as he had no legal or binding notice of its pendency or purpose. Plaintiff’s remedy was against _the landlord and not against a tenant, who in good faith paid his rents. It does not even appear that plaintiff, in his proceeding to *104recover tbe land, made any claim of right to snch rents and profits. The tenant was not in possession after the recognition of plaintiff’s rights. He held under a lease or license from the party having the legal title. He did not hold in bad faith, nor with intent to defraud plaintiff.
_statute constraed. The instruction under consideration is not in conflict with section 3598 of the Revision, which provides, that a tenant is not liable beyond the rent in arrear a-f; time of suit brought for the recovery of the land, and that which may afterward accrue during the continuance of his possession. This was not a “ suit brought for the recovery of the land,” within the meaning of the statute. The section is found in the chapter regulating actions at law for the recovery of real property.
Such an action can be brought against any one “ acting as owner, landlord, or tenant of the property claimed.” And it would be a most violent construction of the statute to hold a tenant acting in good faith, who was in no way a party to such an action, liable for such rent. It contemplates a ease where he is made either the sole defendant, or is sued jointly with the landlord or owner. Neither its language nor spirit would cover a case like .that before us where the plaintiff did not rely upon a legal title, but brought his action, in equity, to set aside an alleged fraudulent conveyance, making the landlord or owner the sole party defendant. Whatever his remedy against the landlord, he certainly has none against the tenant.
Affirmed.