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thereby assumed the position of McCabe, the original lessee, so long as he remained assignee of the lease, and became obligated to perform the covenants and conditions of the lease in as full and complete a manner as the original lessee, McCabe" (6).
§ 44. Effect of sublease. A sublease does not affect the existing liabilities between lessor and lessee, save that the possessory rights of the latter have been transferred to the sublessee in possession. As between lessor and subtenant, the latter is not personally liable to the lessor on any covenants of the lease express or implied; because there is neither privity of contract nor of estate between them. The subtenant does not hold the estate created by the lease but the new estate created by the lessee. And yet he takes the land subject to all the burdens under which the tenant held it, for the latter could not pass a better estate than he has. If there are any acts named in the lease the doing of which is therein declared to be a condition for the breach of which the lessor may enter and terminate the lease, he may make such entry for the doing of the act by the subtenant, and thus the subtenant will lose his estate. If by the statute of the state or the terms of the lease the landlord has a lien on the crops raised on the land to secure the payment of his rent, or has the right to seize the goods of the tenant as a distress to enforce payment, the crops and goods of the subtenant are liable to be so taken. But if the landlord, the lessee, and the new tenant agree together that the new tenant shall take the place of the old,
Springer v. Chicago Real Estate L. & T. Co., 202 Ill. 17.
it amounts to a surrender of the old lease and the granting of a new to the new tenant on the terms of the old; whereby the lessee is absolutely released from further liability and the assignee becomes bound in contract to perform the promises of the lease, so that he cannot escape by an assignment.
§ 45. Rights between lessee and subtenant or assignee. As to the rights between the subtenant or assignee of the lease and the lessee after the making of the lease or assignment, they are liable to each other for the performance of their respective duties. If the lessee is compelled to pay to the lessor by reason of waste committed by the assignee or subtenant, or for his failure to pay the rent, keep the premises in repair, or the like, such payment entitles the lessee to maintain an action against the assignee or subtenant for reimbursement. On the other hand, if the subtenant is compelled to pay rent to the overlord, his lessor's lessor, to save his term, or to redeem his goods from a seizure for rent as a distress, this payment entitles him to recover this amount from his lessor, the original lessee. If his title fails the assignee can recover of the lessee the money paid for the lease, or sue him on the implied covenant for quiet enjoyment.
RIGHTS AND LIABILITIES OF LANDLORD AND TENANT
§ 46. Tenant estopped to deny lessor's title. It would be manifestly inequitable to permit one, who has obtained possession of premises by admitting the title of another, to exclude that other from the possession or enjoyment of the advantages of ownership of the premises by mere reason of the inability of the lessor to prove his title. It is therefore a well established principle of the law of landlord and tenant, that, whatever the nature of the lease, written or oral, long or short, though the lessor be a slave, though the lessee be a public corporation, whatever the character of the parties, the tenant will not be permitted, while he retains the possession acquired under a lease, to deny the title of the lessor. Since the estoppel arises from the fraud that would result from the lessee being allowed to deny the lessor's title while retaining possession, the effect of the estoppel may be avoided at any time by the tenant surrendering the possession to the lessor. After that is done the tenant may assert whatever title he has and recover the land of the lessor if he can. The reason for the rule also shows that the estoppel cannot be avoided by showing defects in the lease, nor by proof of the lessor's admission that he has no title, nor that the property in question taken under
the lease was not described nor included in the description in the lease, nor that the lease shows on its face that the lessor has no title. The estoppel extends to the lessee and all claiming under him, to all parts of the demised premises, to all sorts of property. If the lease was taken from an agent who did not disclose his principal, the tenant is estopped to deny the title of the principal or the authority of the agent. On the other hand, if the person against whom the estoppel is alleged was in possession before the alleged lease was made, the fact of the execution of the paper, or even the payment of rent under it by the tenant, or distress levied is not conclusive evidence that he holds under the lease. As to the effect of such a transaction in creating an estoppel the courts are not agreed. The acceptance of a lease and obtaining possession under it do not estop the lessee from claiming that he has subsequently obtained his lessor's title.
§ 47. Liability for taxes, insurance, etc. Acceptance of a lease for years imposes no liability on the lessee to pay taxes, or his lessor's rent to a superior, or to maintain insurance, or to pay mortgages, or other charges on the premises; and if he is compelled to pay any of these to save his term, he can recover the amount paid in an action against the landlord for money paid to his use, or he may set it off against his liability for rent. But the relation of a tenant for life to the reversioner or remainder man is very different; he is bound to keep down all assessments and charges on the property during his term. A tenant for years is also bound to pay to his landlord whatever the landlord has been compelled to pay in taxes by reason of expensive buildings erected on the premises by the lessee without agreement as to taxes thereon, express or implied. A covenant by the lessee to pay all taxes assessed during the lease does not require him to pay void assessments nor special betterment taxes, and a covenant to pay all assessments has been held not to bind him to pay general state, county, and municipal taxes. The damages for the breach by the tenant of his covenant to pay taxes is the amount of the taxes paid by the landlord and interest. But the measure of damages for his breach of covenant to insure is generally held to be the amount lost by the lessor by reason of the breach, which might be the extent of the damage to be insured against, not exceeding the amount of insurance agreed to be taken, nor the amount of the damage done.
§ 48. Waste and liability therefor. Waste is the destruction or spoiling of houses, lands, or tenements to the disherison of him in remainder or reversion, and is of two kinds, voluntary and permissive. Voluntary waste is the doing of any act of positive destruction, such as cutting down trees, pulling down houses, or the like; permissive waste is neglecting to do what ought to be done to prevent their destruction, as by failing to patch the roof, whereby the leak causes the interior of the house to be injured by the rain. By the law of England it was considered waste for a tenant to convert meadow into plow-land or the reverse, but that would not be considered waste in this country generally. Any material alterations in the internal arrangement of buildings on the