Fitzgerald C.
Action for rent alleged to be due and unpaid on certain demised premises described in the complaint.
The answer specifically denies the material allegations of the complaint, and avers the neglect and refusal of plaintiff to obtain his lessor’s consent to the assignment, after having expressly agreed to do so, rescission of the lease and surrender of the premises by the defendant Treat, and the acceptance of and entry thereon by plaintiff.
The facts disclosed by the testimony of the witnesses for the plaintiff are as follows: On the ninth day of January, 1889, the plaintiff executed to the defendant Treat, in conjunction with one Pierce, a written lease of the premises therein described, for the term of five years from the first day of August, 1888, at the annual rent of eighteen hundred dollars for the first year, and two thousand dollars for each and every year thereafter, payable in two equal installments, semi-annually, in [227]*227advance, on the first days of February and August of each year, during the term of the lease.
Subsequent to the execution of the lease, but on the same day, Pierce executed, with the consent of the plaintiff, a written assignment of all his right, title, and interest in the demised premises to the defendant Porter, who, as part of the consideration “ of such sale or transfer, agreed to pay all rent that may fall due, from time to time, by virtue of the provisions of said lease.” Porter immediately entered into possession of the premises as assignee under the assignment of the lease, and paid by his individual check a part, if not .all, of the first installment of rent.
Treat and Porter continued their joint occupancy of the premises until the latter part of July of that year, when they, without the knowledge or consent of the plaintiff, wholly abandoned the possession of the same; and afterwards, upon demand being made for the rent due and payable on the first day of August, 1889, they refused to pay the same. The reason given by the defendant Treat to plaintiff for the abandonment of the possession of the premises and the refusal to pay the rent when it became due was to the effect that Porter declined to pay any further rent until plaintiff obtained the consent of his lessor to the assignment, and that he, Treat, could not do anything alone. The evidence shows that plaintiff never promised or agreed to furnish such consent to Porter, or to any one for him.
In the early part of August, 1889, the defendant Treat delivered the keys of the house and surrendered the premises to plaintiff, in pursuance of an agreement entered into between them, by which Treat agreed to turn over to him the “dairy fixtures” on the place, and to pay, in addition thereto, the sum of two hundred dollars.
Treat having failed and refused to perform any part of his agreement, the plaintiff handed the keys to his attorney, with instructions to turn them over to Treat un’ess he complied with his agreement. The attorney called upon Treat and made the demand of him, in [228]*228accordance with such instructions, and upon Treat failing to accede thereto, offered to return to him the keys, which he refused to accept, saying “ that he did not want them; that he had surrendered them, and had no use for them.”
Afterwards, on the second day of September following, plaintiff served written notice on Treat and Pierce, mailed another to Porter, and posted one on the dairy-house on the premises, demanding the payment of the rent or the delivery to him of the possession of the premises on or before the eighth day of September, 1889. Plaintiff reentered into possession about the last of October following.
At the conclusion of the plaintiff’s testimony, the defendant Porter moved for a judgment of nonsuit upon the following grounds: “ The evidence shows that he is not a party to the lease of plaintiff to Treat and Pierce; that plaintiff refused and never did release Pierce from said lease as lessee, and defendant Porter never executed the same; that the plaintiff never accepted defendant Porter as lessee upon the original lease; that the defendant Porter, as well as the defendant Treat, surrendered the premises within one year from the date of their occupation of said premises upon the terms specified in said lease, having first paid all rents for the use and occupation thereof during said period; that defendant Porter’s tenancy as assignee of said Pierce, if the court holds that he was such, before the first day of August, 1889, terminated, and he had then ceased to be beneficially or in any way interested in said leasehold, or said premises the subject thereof; that by mutual consent of the parties the relation of landlord and tenant existing between plaintiff and defendants was determined, and said lease rescinded, and defendants surrendered possession of all the premises, and plaintiff went into possession thereof; that the plaintiff himself elected to rescind and work a forfeiture of said lease, and notified defendants to pay the accruing rent in advance, or to surrender possession of the premises, and did consummate and [229]*229execute said rescission, and did take possession of said premises; that at the time of the commencement of this action said lease set forth in the complaint was fully rescinded, determined, and canceled, and no cause of action existed for the enforcement of its covenants.”
“The court denied the motion, and the defendant Porter excepted.”
The case was tried by a jury, and a verdict found in favor of the plaintiff, and from the judgment rendered thereon this appeal is taken by the defendant Porter upon the judgment roll alone.
The only error complained of relates to the ruling of the court denying the motion of the defendant Porter for judgment of nonsuit.
Porter’s covenant, contained in the assignment to him, “ to pay all rent that may fall due, from time to time, by virtue of the provisions of the lease,” and his entry into possession as assignee under the assignment, created the relation of landlord and tenant between him and the lessor, and his holding was by privity of estate, and not by privity of contract, as claimed by respondent. The lessor was not a party to, nor was he in any way benefited by, the contract of assignment. The liability of Porter to the lessor was therefore created solely by the covenant of the lease to pay the rent, which is a covenant running with the land, and not by the contract of assignment, the non-performance of which is enforceable only by the lessee.
The assignee is answerable for the rent during his ownership of the term under the assignment, and his liability therefor arises out of the privity of estate, and this without reference to any obligation assumed by him in the contract of assignment.
Nor did the assignment to Porter, and the acceptance by the lessor of him as tenant, release Pierce from his covenant to pay the rent; but his liability to the lessor continues, notwithstanding the assignment, by privity of contract, to the end of the term of the lease, unless sooner terminated.
[230]*230The evidence shows that Porter, shortly before the installment of rent sued for became due, abandoned the possession of the premises and refused to pay the rent, upon the ground that the plaintiff had failed to furnish, as he agreed to do, the consent of his lessor to the assignment.
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Fitzgerald C.
Action for rent alleged to be due and unpaid on certain demised premises described in the complaint.
The answer specifically denies the material allegations of the complaint, and avers the neglect and refusal of plaintiff to obtain his lessor’s consent to the assignment, after having expressly agreed to do so, rescission of the lease and surrender of the premises by the defendant Treat, and the acceptance of and entry thereon by plaintiff.
The facts disclosed by the testimony of the witnesses for the plaintiff are as follows: On the ninth day of January, 1889, the plaintiff executed to the defendant Treat, in conjunction with one Pierce, a written lease of the premises therein described, for the term of five years from the first day of August, 1888, at the annual rent of eighteen hundred dollars for the first year, and two thousand dollars for each and every year thereafter, payable in two equal installments, semi-annually, in [227]*227advance, on the first days of February and August of each year, during the term of the lease.
Subsequent to the execution of the lease, but on the same day, Pierce executed, with the consent of the plaintiff, a written assignment of all his right, title, and interest in the demised premises to the defendant Porter, who, as part of the consideration “ of such sale or transfer, agreed to pay all rent that may fall due, from time to time, by virtue of the provisions of said lease.” Porter immediately entered into possession of the premises as assignee under the assignment of the lease, and paid by his individual check a part, if not .all, of the first installment of rent.
Treat and Porter continued their joint occupancy of the premises until the latter part of July of that year, when they, without the knowledge or consent of the plaintiff, wholly abandoned the possession of the same; and afterwards, upon demand being made for the rent due and payable on the first day of August, 1889, they refused to pay the same. The reason given by the defendant Treat to plaintiff for the abandonment of the possession of the premises and the refusal to pay the rent when it became due was to the effect that Porter declined to pay any further rent until plaintiff obtained the consent of his lessor to the assignment, and that he, Treat, could not do anything alone. The evidence shows that plaintiff never promised or agreed to furnish such consent to Porter, or to any one for him.
In the early part of August, 1889, the defendant Treat delivered the keys of the house and surrendered the premises to plaintiff, in pursuance of an agreement entered into between them, by which Treat agreed to turn over to him the “dairy fixtures” on the place, and to pay, in addition thereto, the sum of two hundred dollars.
Treat having failed and refused to perform any part of his agreement, the plaintiff handed the keys to his attorney, with instructions to turn them over to Treat un’ess he complied with his agreement. The attorney called upon Treat and made the demand of him, in [228]*228accordance with such instructions, and upon Treat failing to accede thereto, offered to return to him the keys, which he refused to accept, saying “ that he did not want them; that he had surrendered them, and had no use for them.”
Afterwards, on the second day of September following, plaintiff served written notice on Treat and Pierce, mailed another to Porter, and posted one on the dairy-house on the premises, demanding the payment of the rent or the delivery to him of the possession of the premises on or before the eighth day of September, 1889. Plaintiff reentered into possession about the last of October following.
At the conclusion of the plaintiff’s testimony, the defendant Porter moved for a judgment of nonsuit upon the following grounds: “ The evidence shows that he is not a party to the lease of plaintiff to Treat and Pierce; that plaintiff refused and never did release Pierce from said lease as lessee, and defendant Porter never executed the same; that the plaintiff never accepted defendant Porter as lessee upon the original lease; that the defendant Porter, as well as the defendant Treat, surrendered the premises within one year from the date of their occupation of said premises upon the terms specified in said lease, having first paid all rents for the use and occupation thereof during said period; that defendant Porter’s tenancy as assignee of said Pierce, if the court holds that he was such, before the first day of August, 1889, terminated, and he had then ceased to be beneficially or in any way interested in said leasehold, or said premises the subject thereof; that by mutual consent of the parties the relation of landlord and tenant existing between plaintiff and defendants was determined, and said lease rescinded, and defendants surrendered possession of all the premises, and plaintiff went into possession thereof; that the plaintiff himself elected to rescind and work a forfeiture of said lease, and notified defendants to pay the accruing rent in advance, or to surrender possession of the premises, and did consummate and [229]*229execute said rescission, and did take possession of said premises; that at the time of the commencement of this action said lease set forth in the complaint was fully rescinded, determined, and canceled, and no cause of action existed for the enforcement of its covenants.”
“The court denied the motion, and the defendant Porter excepted.”
The case was tried by a jury, and a verdict found in favor of the plaintiff, and from the judgment rendered thereon this appeal is taken by the defendant Porter upon the judgment roll alone.
The only error complained of relates to the ruling of the court denying the motion of the defendant Porter for judgment of nonsuit.
Porter’s covenant, contained in the assignment to him, “ to pay all rent that may fall due, from time to time, by virtue of the provisions of the lease,” and his entry into possession as assignee under the assignment, created the relation of landlord and tenant between him and the lessor, and his holding was by privity of estate, and not by privity of contract, as claimed by respondent. The lessor was not a party to, nor was he in any way benefited by, the contract of assignment. The liability of Porter to the lessor was therefore created solely by the covenant of the lease to pay the rent, which is a covenant running with the land, and not by the contract of assignment, the non-performance of which is enforceable only by the lessee.
The assignee is answerable for the rent during his ownership of the term under the assignment, and his liability therefor arises out of the privity of estate, and this without reference to any obligation assumed by him in the contract of assignment.
Nor did the assignment to Porter, and the acceptance by the lessor of him as tenant, release Pierce from his covenant to pay the rent; but his liability to the lessor continues, notwithstanding the assignment, by privity of contract, to the end of the term of the lease, unless sooner terminated.
[230]*230The evidence shows that Porter, shortly before the installment of rent sued for became due, abandoned the possession of the premises and refused to pay the rent, upon the ground that the plaintiff had failed to furnish, as he agreed to do, the consent of his lessor to the assignment.
The contention that by the abandonment of the possession of the premises by Porter he parted with the beneficial interest, and yielded the possession to the beneficial owner, is unsupported by reason or authority.
The legal title and the possession of the leasehold were in Treat and Porter, and he, Porter, could only divest himself thereof and dissolve the privity of estate by a reassignment, .in writing, to the lessee, or by assignment of his interest to another, accompanied by surrender of possession, or by the working of a forfeiture of the lease for breach of its covenants, and re-entry for such breach, as provided for by the terms thereof. The surrender of the premises by Treat was conditional, and the condition was never fulfilled, nor was it in writing, as required by the statute of frauds; therefore such surrender did not operate as a dissolution of the tenancy.
As the tenancy was only terminated by the lessor’s notice to quit or pay the rent, and re-entry of possession under the right reserved by the lease for breach of its covenants, the motion for judgment of nonsuit was properly denied, for the reason that there was evidence tending to show the liability of appellant for that part of the rent, at least, which had accrued up to the time of the re-entry, and the sufficiency of it was properly left to the jury.
If defendants desired to limit the recovery in any event to the amount of rent which had accrued at the time of the re-entry, it was their duty to ask the court to submit to the jury proper instructions upon that matter. Upon the record before us no error can be predicated.
[231]*231We therefore recommend that the judgment appealed from be affirmed.
Vanclief, C., concurred.
The Court.
For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.
Hearing in Bank denied.