The opinion of the court was delivered by
Kellogg, J.
This was a proceeding under the statute of 1842, to recover possession of a lot of land in the town of Warren. The suit was commenced before a justice of the peace, and came by appeal to the county court, where the defendants pleaded separately. The defendant Lawton pleaded not guilty. The defendant Bucklin, as to all the premises except fifty acres in the south corner of the lot, pleaded a disclaimer, and as to the fifty acres he pleaded not guilty. The defendants Buxton and Holden, as to the fifty acres in the south corner of the lot, disclaimed all title and possession, and as to the residue of the lot they pleaded not guilty. To the proceedings in .the county .court several objections have been taken.
[694]*6941. It is objected, that this action cannot be maintained, against any of the defendants, for the reason, that, by a contract between the plaintiffs and the defendant Lawton, Lawton was to have a durable lease of the premises. It appears, that on the eighth of March, 1847, the plaintiffs leased to the defendant Lawton the premises in question for the term of three years. Appended to the lease is a memorandum of agreement, signed by the plaintiffs and Lawton, to the effect that the plaintiffs (provided their title to the lot in question should be established,) would execute to Lawton a durable lease of the same, upon such terms as indifferent men should say were equitable. This agreement is no part of the lease. It is a distinct and independent agreement. To this objection it may be answered, —1. That it does not appear, that the agreement was founded upon any sufficient consideration. Neither the agreement, or the ease, discloses any consideration. 2. That the terms of the agreement imply, that the plaintiffs’ title to the land in question was then in controversy, and by the agreement that controversy was to be terminated and the plaintiffs’ title established, before the agreement was to become operative. The case does not show, that the plaintiffs’ title has been established. Consequently, we do not see, that the defendants can derive any aid from the agreement. The defendants’ right to occupy the land terminated with the expiration of Lawton’s lease. But had the plaintiffs’ title to the land been established, we do not see, that the agreement would be any defence to this suit, even if it be treated as a valid, binding agreement. For a breach of the contract the party might have a remedy at law, or he might enforce the contract in equity; but we apprehend, it would be no defence to the present suit. I
2. It is objected, that this action cannot be maintained against the defendant Lawton, inasmuch as it appears, that he was not in the actual possession of any portion of the land after the seventh of April, 1847. It appears, that Lawton, on the seventh of April, 1847, put the defendants Buxton and Holden into possession of the lot of land leased by the plaintiffs to Lawton, (except fifty acres, of which Bucklin was in possession,) under a contract, that Lawton would procure a deed from the plaintiffs to Buxton and Holden of one hundred acres of the northerly part of the lot, provided they, within three years, should pay him $200,00 and also pay him $36,00 rent [695]*695for said three years. Lawton executed to them his bond to that effect. The condition of the bond recites, that a lease of the premises had been granted to Lawton by the plaintiffs. Their right to occupy the premises was derived from Lawton. They stood in the relation of tenants to Lawton, paying him a yearly rent, and Law-ton’s title was by virtue of his lease from the plaintiffs. Under such circumstances, it seems to us quite evident, that the action of ejectment well lies against Lawton.
The question recurs, can the present suit be maintained against Lawton ? The suit is a civil suit. The proceedings are in conformity to the statute of 1842; and although the act is in addition to the statute relating to forcible entry and detainer, yet it is very obvious, that all the proceedings contemplated by the statute of 1842 are of a civil nature. The act is not penal. The process is by summons. If the suit is sustained, the plaintiffs recover for rent in arrear, and are entitled to judgment for the possession of the premises and to a writ of possession. The suit is analogous to and contains all the elements of an action of ejectment. The obvious purport and design of the act seems to be, to furnish lessors a summary remedy for the recovery of demised premises, where lessees, or their assignees, hold them after the determination of their leases. We think, the suit may properly be regarded as analogous to the action of ejectment. And consequently the suit may well be maintained against Lawton and all others who were in possession claiming under him.
3. It is further objected, that the action cannot be maintained against the defendant Bucklin. It appears, that on the fourteenth of May, 1847, Bucklin contracted with one Brayman for the purchase of fifty acres at the south end of the lot in question, and entered upon the same under the contract, but received no deed of the land from Brayman. Soon after he went into possession of the fifty acres, he took a lease of Lawton of the same, in which rent was reserved, to be paid to Lawton; and if the plaintiff held the land, Lawton was to give him a perpetual lease. By taking the lease, Bucklin acknowledged the title of Lawton and the plaintiffs, and thereby is estopped from denying the same. After taking the lease, he must be regarded as holding under Lawton, the plaintiffs’ lessee, and by holding over he thereby became liable to this process. [696]*696It brings him within the purview of the statute, upon which the suit is founded. We are referred to several cases in Kentucky, where, it is said, a different doctrine is held; and if so, the cases are doubtless predicated upon the statutes of that state, which may be essentially different from ours. The case before us must be decided with reference to our statute, which in terms subjects the defendant Bucklin to this action.
Again, it is said, that Brayman, under whom Bucklin entered upon the land, should have been made a party to the suit. This objection is supposed to be based upon that provision of the statute relating to the action of ejectment, which requires the landlord, if any there be, to be joined with the tenant in possession, in any action which may be brought for the recovery of the premises. Rev. St. 215, sec. 1. If this section is applicable to the case, the neglect to join Brayman with the tenant, would render the suit subject to be abated on motion ; but that question, not having been raised in the county court, cannot be considered in this court. Nor will such neglect to join Brayman with the tenant in possession, if he is the landlord of Bucklin, prejudice his rights; for the statute expressly provides, that such neglect shall not prejudice the rights of the landlord. We do not think the plaintiff was bound to make Brayman a party to this suit. It does not appear, that the relation of landlord and tenant existed between Brayman and Bucklin; and if it did, there is no evidence of it upon the proper records, without which the plaintiff was not bound to notice it.
4. It is farther objected, that, as the plaintiffs have brought their action declaring upon a joint possession, they cannot recover against either of the defendants in this suit. This objection is disposed of by the case of Rood v. Willard, Brayt.
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The opinion of the court was delivered by
Kellogg, J.
This was a proceeding under the statute of 1842, to recover possession of a lot of land in the town of Warren. The suit was commenced before a justice of the peace, and came by appeal to the county court, where the defendants pleaded separately. The defendant Lawton pleaded not guilty. The defendant Bucklin, as to all the premises except fifty acres in the south corner of the lot, pleaded a disclaimer, and as to the fifty acres he pleaded not guilty. The defendants Buxton and Holden, as to the fifty acres in the south corner of the lot, disclaimed all title and possession, and as to the residue of the lot they pleaded not guilty. To the proceedings in .the county .court several objections have been taken.
[694]*6941. It is objected, that this action cannot be maintained, against any of the defendants, for the reason, that, by a contract between the plaintiffs and the defendant Lawton, Lawton was to have a durable lease of the premises. It appears, that on the eighth of March, 1847, the plaintiffs leased to the defendant Lawton the premises in question for the term of three years. Appended to the lease is a memorandum of agreement, signed by the plaintiffs and Lawton, to the effect that the plaintiffs (provided their title to the lot in question should be established,) would execute to Lawton a durable lease of the same, upon such terms as indifferent men should say were equitable. This agreement is no part of the lease. It is a distinct and independent agreement. To this objection it may be answered, —1. That it does not appear, that the agreement was founded upon any sufficient consideration. Neither the agreement, or the ease, discloses any consideration. 2. That the terms of the agreement imply, that the plaintiffs’ title to the land in question was then in controversy, and by the agreement that controversy was to be terminated and the plaintiffs’ title established, before the agreement was to become operative. The case does not show, that the plaintiffs’ title has been established. Consequently, we do not see, that the defendants can derive any aid from the agreement. The defendants’ right to occupy the land terminated with the expiration of Lawton’s lease. But had the plaintiffs’ title to the land been established, we do not see, that the agreement would be any defence to this suit, even if it be treated as a valid, binding agreement. For a breach of the contract the party might have a remedy at law, or he might enforce the contract in equity; but we apprehend, it would be no defence to the present suit. I
2. It is objected, that this action cannot be maintained against the defendant Lawton, inasmuch as it appears, that he was not in the actual possession of any portion of the land after the seventh of April, 1847. It appears, that Lawton, on the seventh of April, 1847, put the defendants Buxton and Holden into possession of the lot of land leased by the plaintiffs to Lawton, (except fifty acres, of which Bucklin was in possession,) under a contract, that Lawton would procure a deed from the plaintiffs to Buxton and Holden of one hundred acres of the northerly part of the lot, provided they, within three years, should pay him $200,00 and also pay him $36,00 rent [695]*695for said three years. Lawton executed to them his bond to that effect. The condition of the bond recites, that a lease of the premises had been granted to Lawton by the plaintiffs. Their right to occupy the premises was derived from Lawton. They stood in the relation of tenants to Lawton, paying him a yearly rent, and Law-ton’s title was by virtue of his lease from the plaintiffs. Under such circumstances, it seems to us quite evident, that the action of ejectment well lies against Lawton.
The question recurs, can the present suit be maintained against Lawton ? The suit is a civil suit. The proceedings are in conformity to the statute of 1842; and although the act is in addition to the statute relating to forcible entry and detainer, yet it is very obvious, that all the proceedings contemplated by the statute of 1842 are of a civil nature. The act is not penal. The process is by summons. If the suit is sustained, the plaintiffs recover for rent in arrear, and are entitled to judgment for the possession of the premises and to a writ of possession. The suit is analogous to and contains all the elements of an action of ejectment. The obvious purport and design of the act seems to be, to furnish lessors a summary remedy for the recovery of demised premises, where lessees, or their assignees, hold them after the determination of their leases. We think, the suit may properly be regarded as analogous to the action of ejectment. And consequently the suit may well be maintained against Lawton and all others who were in possession claiming under him.
3. It is further objected, that the action cannot be maintained against the defendant Bucklin. It appears, that on the fourteenth of May, 1847, Bucklin contracted with one Brayman for the purchase of fifty acres at the south end of the lot in question, and entered upon the same under the contract, but received no deed of the land from Brayman. Soon after he went into possession of the fifty acres, he took a lease of Lawton of the same, in which rent was reserved, to be paid to Lawton; and if the plaintiff held the land, Lawton was to give him a perpetual lease. By taking the lease, Bucklin acknowledged the title of Lawton and the plaintiffs, and thereby is estopped from denying the same. After taking the lease, he must be regarded as holding under Lawton, the plaintiffs’ lessee, and by holding over he thereby became liable to this process. [696]*696It brings him within the purview of the statute, upon which the suit is founded. We are referred to several cases in Kentucky, where, it is said, a different doctrine is held; and if so, the cases are doubtless predicated upon the statutes of that state, which may be essentially different from ours. The case before us must be decided with reference to our statute, which in terms subjects the defendant Bucklin to this action.
Again, it is said, that Brayman, under whom Bucklin entered upon the land, should have been made a party to the suit. This objection is supposed to be based upon that provision of the statute relating to the action of ejectment, which requires the landlord, if any there be, to be joined with the tenant in possession, in any action which may be brought for the recovery of the premises. Rev. St. 215, sec. 1. If this section is applicable to the case, the neglect to join Brayman with the tenant, would render the suit subject to be abated on motion ; but that question, not having been raised in the county court, cannot be considered in this court. Nor will such neglect to join Brayman with the tenant in possession, if he is the landlord of Bucklin, prejudice his rights; for the statute expressly provides, that such neglect shall not prejudice the rights of the landlord. We do not think the plaintiff was bound to make Brayman a party to this suit. It does not appear, that the relation of landlord and tenant existed between Brayman and Bucklin; and if it did, there is no evidence of it upon the proper records, without which the plaintiff was not bound to notice it.
4. It is farther objected, that, as the plaintiffs have brought their action declaring upon a joint possession, they cannot recover against either of the defendants in this suit. This objection is disposed of by the case of Rood v. Willard, Brayt. 67, where it was held, that, in ejectment, the declaration is good against the defendants jointly, although it appear in evidence, that the possessions and trespasses of the defendants were several and distinct, upon the same lot of land described in the declaration.
5. It is urged, that, by virtue of the agreement annexed to the lease, the defendants became tenants at will, and, as such, were entitled to notice to quit. This objection is not sustained. We have already shown, that the agreement was without consideration and wholly inoperative. It conferred no right upon Lawton to occupy the premises. Whatever right he had was derived from the lease.
[697]*6976. It is also insisted, that the plaintiffs are not entitled to recover, in this suit, the rent that accrued under the lease. It appears to us, that this objection is not well taken. The statute expressly provides, that, if the plaintiff is entitled to recover, he shall have judgment for the possession of the premises and for rents. This must be rent, that accrued prior to the judgment, and evidently means rent accruing under the contract. The justice, it is true, is limited in amount to thirty dollars. But it will be noticed, that, on the defendants’ taking an appeal, the statute provides, that the appellant shall give recognizance to the plaintiff not only to enter the appeal, but to pay all rent then due and all intervening rent, damages and cost. This language is broad enough to embrace the rent which accrued under the lease, as well as the subsequent rent, and no distinction appears to be made by the statute between them. It was intended to cover the rent due at the rendition of the judgment.
It has been said, that, as the justice, in his judgment, was limited to thirty dollars, the appellate court must be limited to the same amount. But it seems to us, that this does not necessarily follow. The jurisdiction of justices of the peace in civil suits is limited to one hundred dollars; yet the appellate court does add to the judgment below the accruing interest, though the amount exceeds one hundred dollars; and, in analogy to that well settled practice, we think, in the present case, the county court might well add the accruing rent. The defendants are made liable to the payment of it by the statute, and we can see no necessity for turning the plaintiff over to a suit upon the recognizance. The object of the recognizance was, to give the plaintiff security for the ultimate payment of the judgment he might recover; and if the defendants are able to pay it, there can be no necessity of resorting to the recognizance.
A question has also been made as to the power of the county court to award separate damages against the defendants. But, under the pleadings in the case, it seems to us, that the judgment awarding separate damages was obviously right. It is to be borne in mind, that the defendants severed in their defence, — that they held, by separate and distinct possessions, different parts of the same tract, and it would seem to be most equitable, that there should be separate damages awarded. We cannot see, that such judgment [698]*698operates as an injury to any one. Nor do we perceive any legal objection to an apportionment of the damages among the defendants, according to their respective possessions, where they sever in their defence. Indeed, such course seems to be warranted by the statute. Rev. St. 215, sec. 5. Lessee of Bayard v. Colfax et al., C. C. U. S., New Jersey, cited in Coxe’s Digest 272.
' Upon the whole, we discover no error in the judgment of the county court, and the same is therefore affirmed.