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to hold under the lessors of the plaintiff, defended this action of ejectment under an indemnity from the assignees of W. Prideaux.

Follett for the lessors of the plaintiff. The question in this case is, whether the deed was sufficient, without livery of seisin, to pass the estate in the lands in the parish of Loddiswell to the lessors of the plaintiff for the life of the grantor. The lessor of the plaintiff had a reversion expectant on the determination of Cole's tenancy, and that will pass by the word grant without livery. It is true, that in order to pass a freehold interest in possession, livery of seisin is essential, unless the conveyance takes effect under the statute of uses; but a reversion expectant on an estate of freehold, or for years, passed by grant with the attornment of the tenant before the statute of the 4 Anne, c. 16, § 9. Co. Lit. 49 a; 2 Bl. Com. 317; Shepherd's Touchstone, 210, 288; 1 Saund. 232, n. 3; Bacon's Abridgment, Lease N. And if it so passed then, it will, since the statute, pass by grant without the attornment of the tenant. It may, perhaps, be said, that although a reversion expectant on the determination of a freehold term would pass by the deed, yet that this being a reversion expectant on the determination of a term for years, it will not pass; but Littleton, §§ 567, 568, and Lord Coke's Comment on the latter section, and Littleton, § 572 shew, that there is no distinction in this respect between a reversion expectant on the determination of a freehold term, and one expectant on the determination of a term for years. A tenancy from year to year is a term for years. Botting v. Martin, 1 Campb. 317. Assuming that the deed was not intended to pass the reversion, it was clearly intended to pass the land; and if the words in the deed are sufficient for that purpose, the court will give effect to the intent. Roe v. Tranmer, 2 Wils. 75; Haggerston v. Hanbury, 5 B. & C. 101.

Coleridge, contra. It must be conceded, that a person seised of a freehold, of which a lessee for years is in possession, may transfer his reversionary interest by deed without livery of seisin. But here, Walter Prideaux was in possession of some part of the premises intended to be conveyed, and those will not pass by this deed. This action is brought to recover those premises, of which Cole, at the time when the deed was executed, was in possession. The deed does not profess to grant the reversion of any premises; it describes the premises sought to be recovered, as being in the possession of Walter Prideaux and of Samuel Cole. It is clear, therefore, that it was the intention of the parties that an immediate possession of the lands, and not the mere reversion of them, should pass. It is a presumption of law, resulting from the deed, that Prideaux and Cole were joint-tenants of the estate; and then the possession of one would be the possession of both. Now if a grantor and his tenant are in possession of an estate, and the deed of grant does not point out what part was in his own possession, and what in that of the tenant, but professes to pass an immediate freehold, the one will not pass without livery of seisin, and the other will not pass, because it was not the intention of the grantor.

BAYLEY, J. It is laid down distinctly, in Co. Lit. 49 a, "that if a man be seised of two acres in fee, and letteth one of them for years, and intending to pass them both by feoffment, maketh a charter of feoffment, and maketh livery in the acre in possession in name of both, only the acre in possession passeth by the livery. Yet if the lessee attorn, the reversion of that acre shall pass by the deed and attornment.” And Lord Coke afterwards says, "So it is if any man make a lease, and by deed grant the reversion in fee, here the freehold with attornment of the lessee by the deed doth pass, which is in lieu of livery." Now that is an authority to shew, that where lands are in possession of a tenant, the reversioner may convey his interest by deed. All lands lie in livery or in grant and they do not lie in livery where the party intending to convey cannot give immediate possession. Here Prideaux had the freehold in him, but the right of possession was in his tenant. He, therefore, had a reversion expectant on the determination of the term. Now a reversion, which is a vested right, lies in grant. There can be no doubt that this instrument has words fully sufficient to operate by way of grant. On the short ground, that where the right of possession is in a tenant for years, the right of the landlord is a reversion expectant on the determination of the tenancy, and lies in grant, and not in livery, I am of opinion that the reversion of the lands sought to be recovered passed by the deed.

HOLROYD, J. The passage cited from Co. Lit. 49 a is decisive to show that the reversion passed by this deed to the lessors of the plaintiff.

LITTLEDALE, J. If Prideaux had been in actual possession of these premises, and intended to have conveyed his interest to a stranger, he ought to have delivered seisin. But possession being in a tenant from year to year, Prideaux had only a reversion, and in order to convey that reversion to the tenant in possession, must have released his right; but the proper mode of passing a reversion to a stranger not in possession is by grant. Here Prideaux has granted the reversion by the deed in question to the lessors of the plaintiff, who are entitled to recover. Judgment for the plaintiff.

FISHER v. DEERING.

SUPREME COURT OF ILLINOIS.

[Reported 60 Il. 114.]

APPEAL from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

Mr. Consider H. Willett, for the appellant.

Mr. J. A. Cram, for the appellee.

MR. JUSTICE WALKER delivered the opinion of the court. It appears,

from an examination of the authorities, that at the ancient common law a lease was not assignable so as to invest the assignee with the legal title to the rent. Such instruments were, in that respect, on a footing with other agreements and choses in action. But the 32 Hen. 8, chapter 34, section 1, declared that the assignee of the reversion should become invested with the rents. But notwithstanding this enactment, the courts held that the assignee of the reversion could not sue for and recover the rent unless the tenant should attorn, when the holder of the reversion might recover subsequently accruing rent in an action of debt. Marle v. Fake, 3 Salk. 118; Robins v. Cox, 1 Levinz, 22; Ards v. Walkins, 2 Croke's Eliz. 637; Knowles' Case, 1 Dyer, 5 b; 5 Barn. & Cress. 512, and the note.

In Williams v. Hayward, 1 Ellis & Ellis, 1040, after reviewing the old decisions on this question, it was, in substance, held that, under the 32 Hen. 8, an assignee of the rent, without the reversion, could recover when there was an attornment, and that such an assignee could, under the 4 of Anne, recover without an attornment.

The courts seem to have proceeded upon the ground that there could be no privity of contract unless the tenant should attorn to the assignee of the reversion; that whilst the assignment of the reversion created a privity of estate between the assignee and the tenant, privity of contract could only arise by an agreement between them. Some confusion seems to have got into the books from calling the purchaser of the reversion an assignee of the lease, by its passing by the conveyance as appurtenant to the estate. But where the tenant attorned to the assignee of the reversion the assignment became complete, and then there existed both privity of estate and of contract between the assignee and the tenant, and by reason of the privity of contract the assignee might sue in debt, and recover subsequently accruing, but not rent in arrear at the time he acquired the reversion.

To give the assignee of the reversion a more complete remedy, the 4 and 5 Anne, chapter 16, section 9, was adopted, dispensing with the necessity of an attornment which the courts had held to be necessary under the 32 Hen. 8, to create a privity of contract. But this latter [former] Act has never been in force in this State, and hence the decisions of the British courts, made under it, are not applicable. In many States of the Union this latter [former] Act has been adopted, and the decisions of their courts conform, of course, to its provisions. But we having adopted the common law of England, so far as the same is applicable and of a general nature, and all Statutes or Acts of the British Parliament made in aid of, and to supply defects of the common law, prior to the fourth year of James the First, except certain enumerated Statutes, and which are of a general nature and not local to that kingdom, they are declared to be the rule of decision, and shall be considered of full force until repealed by legislative authority. Gross' Comp. 1869, 416. It then follows that the 32 Hen. 8, chapter 34, section 1, is in force in this State, as it is applicable to our condition, and is unre

pealed. And we must hold, that the construction giver to that Act by the British courts was intended also to be adopted.

The facts in this case show such a privity of contract as brings it fully within the rule announced in the above cases. Appellee paid to appellant several instalments of rent falling due under the lease after it was assigned to him. By paying the rent, the lessee fully recognized the appellant as his landlord, and created the necessary privity of contract to maintain the action.

The case of Chapman v. McGrew, 20 Ill. 101, announces a contrary doctrine. In that case this question was presented, and notwithstanding the lessee had fully recognized the assignee of the lease as his landlord, it was held that the lessor of the premises might maintain an action to recover the rent. In that case, the fact that the lessee had attorned to the assignee, was given no weight, and the fact that such privity was thereby created as authorized the assignee of the lease to sue for, and recover the rent, was overlooked. In that, the decision was wrong. The right of action could not be in both the lessor and his assignee, and the privity thus created gave it to the latter.

The subsequent case of Dixon v. Buell. 21 Ill. 203, only holds that such an assignee, whether he holds the legal or equitable title to the lease, may have a claim for rent growing out of the lease, probated and allowed against the estate of the lessee. That case has no bearing on the case at bar.

The judgment of the court below is reversed and the cause remanded. Judgment reversed.

PERRIN v. LEPPER.

SUPREME COURT OF MICHIGAN.

[Reported 34 Mich. 292.]

ERROR to Calhoun Circuit.

T. G. Pray, for plaintiffs in error.

Brown and Patterson, for defendants in error.

MARSTON, J. Brown and Van Arman, being the owners, as tenants in common, of certain property in Marshall, on the 6th of September, 1859, leased the same to defendants for a term of five years from and after that date, for which defendants agreed to pay them two hundred and seventy-five dollars per year, payable quarterly. On the 12th day of April, 1862, Van Arman by warranty deed conveyed his interest in said premises, together with the rents, issues and profits thereof, to plaintiffs, who, about the 14th of April, 1862, gave defendants notice of such purchase, and that they, the plaintiffs, would require one-half the rent from and after that time. This request not having been complied with, plaintiffs, December 29, 1863, commenced this action to recover the amount of rent claimed by them. In their declaration they

declared specially upon the lease, setting forth the conveyance by Van Arman to them, and also inserted a count for use and occupation. The court charged the jury that in order for plaintiffs to recover upon either count, it was incumbent on them to prove that before the action was commenced the Leppers had recognized and acknowledged the relation of landlord and tenant as existing between them; in other words, that there had been an attornment. There being no such evidence, plaintiffs failed. To this ruling they excepted, and the question here raised is really the only one in the case. It is true that counsel for defendants in error insists that the plaintiffs, even if entitled to recover, could not sue alone, but must have joined their co-tenant of the reversion in bringing this action. It may be doubtful whether such a question properly arises under the ruling of the court, but as a new trial must be ordered, and this question may again come up, we may as well dispose of it at the present time, by saying that the non-joinder could only be set up in abatement, which was not done in this case, and if not so pleaded, it would merely go to apportion the damages. Achey v. Hull, 7 Mich. 430.

It has come to be the generally accepted doctrine in this state, that a person who is owner of real estate, personal property or choses in action, or who has an interest therein, may grant, convey or assign his right or interest, without the assent or acquiescence of any third person, and that the grantee or assignee will take, hold and enjoy the property so acquired in the same manner and with the like rights that his grantor or assignor had. The law has always been very liberal in this state in permitting assignments of choses in action, and now permits the assignee to sue and recover thereon in his own name. The lessor of real estate may convey his reversion, and his grantee will be entitled to the rents accruing thereafter, or he may assign the reversion, reserving the rents, or assign the rents due and to become due. In either case when the rents are assigned, the assignee may sue and collect them in his own name under our statute. The conveyance from Van Arman to plaintiffs was of his entire interest in the demised premises, "and the reversion and reversions, remainder and remainders, rents, issues and profits thereof." The effect of this conveyance was not to release defendants from the payment of rent; they could no more thereafter than before retain the beneficial use and enjoyment of the demised premises and at the same time be exempt from the payment of rent under their lease. Van Arman, however, after his conveyance was no longer entitled to collect this rent. That right he had transferred and assigned to the plaintiffs. If defendants, by refusing to attorn to the plaintiffs, can prevent their collecting, the only effect would be to complicate matters and place obstructions in the way of the sale of demised premises. The doctrine of attornment grew out of the peculiar relations existing between the landlord and his tenant under the feudal law. The landlord could not alienate the estate without the consent of his tenant. This consent was called an attornment. It was founded upon

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