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their rental value is a question of fact for the jury. But the implied liability for holding over the term is the former rent.
$ 71. Same: Assignees, agents, partners, mortgagees, etc. An assignment of a lease creates a liability by the assignee to pay the rent, but does not release the lessee from liability unless it amounts to a surrender of his term or the equivalent of an express discharge of him, though the lessor accept rent of the assignee. If rent is payable quarterly, assignment during the quarter makes the assignee liable for the whole quarter's rent. An agent does not become personally liable for the rent by occupying for his principal. Neither the firm nor the other members of it become liable for the rent on a lease to one of its members by occupying the premises for firm purposes. A subtenant is not personally liable for the rent on the original lease. A mortgagee or sheriff does not become liable for the rent by taking possession of the lessee's goods on the premises and proceeding to sell them there. But if the tenant for years or his assignee die, the executor or administrator is liable to the same extent his decedent would have been for all the rent if the deceased was the lessee, or for the time possession was had from taking till making the assignment if the decedent was assignee. In all these cases, the mortgagee, sheriff, partnership, etc., may become liable by promising the lessor to pay the rent to induce him not to forfeit the lease for default.
§ 72. Same: Trespassers. If one enters as a trespasser and holds the land of another adversely
the law will imply no promise to pay rent.
In such case the action must be in tort for the mesne profits, not for rent. If one in possession of the land of another is informed by the other that a certain rent will be demanded for further occupation, acquiescence and agreement to pay the demanded rent will be implied from the continued possession of the occupant without denial that he holds as tenant and under liability for rent. If the occupant originally entered as a trespasser the law will presume that his occupation continued as such; and the burden is on the owner to show subsequent recognition of his title in order to enable him to maintain assumpsit for use and occupation; but in the absence of proof that the entry was wrongful, the law would not presume a wrong, and so proof of ownership by plaintiff and occupation by defendant without further explanation would make a prima facie case.
§ 73. Who is entitled to rent? In general. Rent past due is a chose in action not affected by any release, surrender, assignment, merger, or other disposition of the reversion after the rent became in default; he is entitled to it who would have been entitled to it if none of these acts had been done. Rent not yet past due is incident to the reversion to which it is due. A transfer of the reversion to which the rent is to accrue gives the transferee the right to the rent when it accrues unless there is a stipulation to the contrary in the conveyance. But the rent and the reversion may be separated. The owner of the lease and reversion may sell the lease and rent without the reversion, the rent without the lease or reversion, the reversion without the rent or lease, or the like, by appropriate conveyances. He may also keep the reversion and sell part of the rent to one and part to another, or he may sell part of the reversion to one, part to another, and keep part himself.
§ 74. Same: Apportionment of rent. “Rent, whether rent service or rent charge, may be divided in amount, and assigned in several parts, by deed or will, whilst the reversion and the tenement charged remain entire; and the assignee of a part of the rent may distrain for the amount of his part separately. The attornment or consent of the tenant of the land to such partition of the rent is not necessary; for though he may thereby be subjected to several actions or distresses, it would be only by reason of his own default in not paying the rent. Rent service is apportioned by law upon a partition of the reversion to which the rent is incident. If the partition is made in undivided shares, the rent is apportioned in amount according to the number of the shares; and each partitioner may distrain in his own right upon all of the demised premises, but only for the amount of his own share. If the partition is made by granting the reversion of several parts of the demised premises separately, the rent is apportioned according to the value of the several parts; and each reversioner may distrain upon his own part only for the rent apportioned to that part. In such case the tenant is not bound by an apportionment without his consent, and if he disputes the amount claimed, it must be settled in the legal proceedings taken by the several reversioners for their respective shares of the rent. ...
The lessor who grants away the reversion in part of the demised premises remains entitled to the value apportioned to the reversion of the part retained; and he may recover that amount upon the covenant by the lessee to pay the rent reserved. And the grantee of the reversion in part may also recover upon the covenant the amount of rent apportioned to his part” (2).
$75. Same: Transfer of reversion. But if the lessor for years gives a new lease for years for a longer term than the first is to continue, and the new lease is to begin at once, this grant of the whole reversion for the period covered by the old lease and more passes the whole rent to the new lessee, who is entitled to recover it, and not the lessor. The first lessee may set up in defense of an action against him by the lessor that the reversion has been thus assigned, though no claim has been made of him for the rent, but if he pays the rent to his lessor before notice of the assignment, such payment will be a good defense to an action against him by the assignee or grantee of the reversion. If the tenant buys the reversion the rent now due to himself is extinguished, and if he buys part of the reversion the rent is extinguished to the proportion of the reversion purchased. If the lessor dies the rent belongs to him to whom the reversion goes, to the executor or administrator if the lessor had only a term for years out of which he made the lease, to the heir if the lease was out of a descendable estate, to the devisee if the testator devised the reversion. If the lessor assigns the rent or lease or a part interest therein, a subsequent
(2) Leake's Uses and Proits of Land, 412-3,
grant of the reversion gives the grantee no right to the part of the rent previously assigned; but if the lessor merely grants the reversion “subject to the lease” the grantee is entitled to the rent. A grant on the day the rent is due carries the rent to the grantee.
$76. Same: Apportionment as to time. At common law there was no apportionment as to time, and the rule still holds in the absence of a statute governing the case. If the lessor or landlord conveys the premises before the rent is due, he cannot recover any part of the rent due at the next payment; and this is so though there has been no attornment to the grantee or eviction by him. If the life tenant dies during a quarter or even on the last day of it, the rent due and payable by his tenant at the end of the quarter all goes to the remainder man or reversioner-at least it is not recoverable by the executor of the life tenant. At common law the lessee might escape payment entirely. The remainder man had no rights under a lease made by the life tenant, and by the termination of the life estate before the rent day the lessee might abandon possession and escape all liability; but by statute, 11 Geo. II (1737), c. 19, § 15, the executor was authorized to recover a proportionate amount. Even to this day, if the lessor terminates the lease by a wrongful eviction between rent days, the lessee may abandon and defend against any action for the rent accruing since the last rent day. Likewise if the lessor evicts him from a substantial part of the premises and because of it he abandons the whole. If the lessor owning the fee leases for years and dies during a quarter, the heir is entitled