Miller &

thereof for rent collected on account of such lease. Lux v. Gray, 136 Cal. 261 (68 Pac. Rep. 770). Rents accruing after the death of the decedent, and before the exercise of a power of sale, go with the title of the land to the heir or devisee, and not to the executor. Bittle v. Clement, N. J.

Eq. (54 Atl. Rep. 138). Rents of devised lands may be claimed by an executor when required to pay the testator's debts. Shell v. West, 130 N. C. 171 (41 S. E. Rep. 65). A purchaser of the equity of redemption from the owner thereof is bound by a prior appointment in foreclosure proceedings of a receiver for rents and profits, and he can not recover by a collateral action rents and profits accruing during foreclosure, where it appears that such owner was a party to such foreclosure proceedings in which the receiver was appointed, and that the sale of the equity of redemption was made after foreclosure sale of the property had been made and the receiver had made a partial report which had been approved. Equitable Trust Co. v. Wilson, 200 Ill. 23 (65 N. E. Rep. 430).

Sec. 644. Right to rents-Mortgagor and mortgagee. Rents accruing on mortgaged premises before the filing of a bill to foreclose the mortgage, in possession of one holding them in trust for a grantee of the premises who had assumed the mortgage, are not to be applied on a deficiency decree but belong to such grantee. Gandy v. Coleman, 196 Ill. 189 (63 N. E. Rep. 625). A mortgagee taking possession of the mortgaged premises on account of the default of his mortgagor, in pursuance of a stipulation in the mortgage giving him this right upon such default, will be held to account for the rents and profits in a subsequent action for foreclosure or to redeem. Felino v. K. S. Newcomb Lum. Co., 64 Neb. 335 (89 N. W. Rep. 755). N. Dak. Rev. Codes, § 5549 construed and applied -right of mortgagor to demand of purchaser in possession during year of redemption a verified statement of value of use and occupation of premises during such period. Little v. Worner, 11 N. Dak. 382 (92 N. W. Rep. 456).

Sec. 645. Right to rents-Purchaser at foreclosure sale. Under Burns' Ind. Rev. Stat., § 779, a purchaser at a general judgment or foreclosure sale in his relation as a purchaser is not entitled to rents accruing for one year after his purchase, but in foreclosure proceedings an insolvent mortgagor or owner, who does not redeem, and who holds possession by

a tenant, as in this case, during the year for redemption, is not entitled to the rents and issues of the property as against a mortgagee purchaser, whose judgment is not wholly paid; and this right is not lost to the mortgagee by reason of the fact that he took no personal judgment against a defendant who had purchased the land of the mortgagor. Russell v. Bruce, 159 Ind. 553 (64 N. E. Rep. 602). Construing and applying Hill's Ann Or. Laws, $ 307, providing that a purchaser of land at a judicial or execution sale, from the day of sale until a resale or redemption shall be entitled to the possession unless the same be in the possession of a tenant holding under an unexpired lease, in which case he shall be "entitled to receive from the tenants the rents or the value of the use and occupation thereof during the same period," it is held that a purchaser at a mortgage foreclosure sale of land in possession of a tenant under an unexpired lease executed after the execution of the mortgage is entitled to the rent, or the value of the use and occupation of the premises, from the day of sale, notwithstanding the tenant, in accordance with his lease, has paid the rent in advance to his lessor. United States Mortg. & T. Co. v. Willis, 41 Or. 481 (69 Pac. Rep. 266).. Citing, Harris v. Foster, 97 Cal. 292 (32 Pac. Rep. 246; 33 Am. St. Rep. 187); Walker v. McCusker, 71 Cal. 594 (12 Pac. Rep. 723); Byers v. Rothschild, 11 Wash. 296 (39 Pac. Rep. 688). Under this statute, where a purchaser at a foreclosure sale is deprived of possession by appeal and supersedeas bond, upon affirmance of the decree, he is entitled to recover on such bond the value of the use and occupation of the land, not exceeding the amount of the bond. German Sav. & Loan Soc. v. Kern, 42 Or. 532 (70 Pac. Rep. 709).

Sec. 646. Creation of liability to pay rent. No implied agreement to pay rent to his wife arises on the part of a husband by their occupying her property as a home. Gardner v. Gardner, 29 Ind. App. 449 (64 N. E. Rep. 637). Where one continues to graze his stock upon the land of another, after being notified that he will be required to pay rent unless he desists from doing so, an implied promise to pay a reasonable rent for such use of the land arises. Gillespie v. Hendren, 98 Mo. App. 622 (73 S. W. Rep. 361). No liability for rent can arise against a city on account of a lease to it in which it is expressly stipulated that there should be no liability thereon unless the city council should make an appropriation therefor,

where no such appropriation was ever made, although the city was under moral obligation to make the appropriation and had power to bind itself to pay rent before the making of such an appropriation. Marsh, Merwin & Lemmon v. City of Bridgeport, 75 Conn. 495 (54 Atl. Rep. 196). A lessor of real property has no right of action against a third party for the use and occupation of a portion of the leased premises during the duration of the lease and at a time when the lessee was entitled to the possession of the property. Southern Ry. Co. v. State, 116 Ga. 276 (42 S. E. Rep. 508). A lessor leasing an entire house, in the attic of which he has his goods stored and locked, to one who takes possession without knowledge of this fact, and to whom he refuses to surrender the attic when requested to do so, can not recover for use and occupation on the express contract, because he has not furnished the stipulated consideration; nor can he recover upon an implied one for the benefit actually received because the failure to furnish the whole was due to his own wilful fault. Moore v. Mansfield, 182 Mass. 302 (65 N. E. Rep. 398; 94 Am. St. Rep. 657). A stipulation in a lease that it shall be void upon the lessee's failure to pay rent is for the benefit of the lessor, and the lessee can not by his default in the payment of an installment of rent, terminate the lease and thus release his sureties from liability for future installments. English v. Yates, 205 Pa. St. 106 (54 Atl. Rep. 503). A lessor in a lease for a term of years at a fixed annual rental with right of re-entry upon the failure to pay rent, is not entitled to demand from a receiver appointed upon the insolvency of the lessee, rent accruing under the lease after the receiver quits the premises. Klein v. W. A. Gavenesch Co. 64 N. J. Eq. 50 (53 Atl. Rep. 196). See opinion for discussion of this subject.

Sec. 647.

Defenses in actions for rent. In an action by a corporation lessor on a guaranty of a third person for the payment of the rent, he can not defend on the ground that the acquisition of the property by the corporation was ultra vires, Nantasket Beach S. S. Co. v. Shea, 182 Mass. 147 (65 N. E. Rep. 57). A defendant in an action for rent can not deny his lessor's title. Shell v. West, 130 N. C. 171 (41 S. E. Rep. 65). As against a claim for full rent filed by a landlord in bankruptcy proceedings of his tenant, a prior agreement to reduce the rent may be shown. Evans v. Lincoln Co., 204 Pa. St. 448 (54 Atl. Rep. 321). A lessee can not set up as a defense to an

action on a lease for rent a parol agreement between him and his lessor made before the execution of the lease that if the lessee should take a lease of another building of the lessor, which he had done, the lessor would surrender all rights under the first lease. Taylor v. Goding, 182 Mass. 231 (65 N. E. Rep. 64). A tender of his check for rent made by a lessee who has money in the bank sufficient to pay the check is sufficient where his lessor has been in the habit of receiving such checks for the rent and refuses the particular check for other reasons than the failure of the lessee to tender the money. Bonaparte v. Thayer, 95 Md. 548 (52 Atl. Rep. 496). As to what is the proper measure of damages to award a defendant who sets up a breach of his landlord's covenant to make repairs, see Frederick v. Daniels, 74 Conn. 710 (52 Atl. Rep. 414).

Where a lessor conveys the leased premises to a third person without reserving the rent to become due thereafter, the lessee may defend against an action by the lessor to recover such rent, without having been evicted by title paramount, or disturbed in his posesssion during the term. Allen v. Hall,

Neb. (92 N. W. Rep. 171). The court say: "The great weight of authority is that rent is an incident to the reversion, and a deed without reservation invests the grantee with the right to recover it. The defense thus arising in favor of the lessee, against an action by the lessor for rent falling due after an assignment of the reversion, does not depend upon eviction or ouster by the assignee, but is complete without it. English v. Key, 39 Ala. 113; Franklin v. Palmer, 50 Ill. 205; Burden v. Thayer, 3 Metc. (Mass) 76 (37 Am. Dec. 117); Van Wicklin v. Paulson, 14 Barb. 654; Demarest v. Willard, 8 Cow. 206; Peck v. Northrop, 17 Conn. 217."

Sec. 648. Collection of rent by distress. A covenant to pay water rent is a covenant to pay to the party entitled to it and can not be enforced by distress. Evans v. Lincoln Co., 204 Pa. St. 448 (54 Atl. Rep. 321). A distress warrant, issued upon an affidavit alleging that the rent distrained for "is now due and unpaid," is sufficiently met by a counter affidavit alleging that "the sum distrained for under the warrant issued * * * was not due at the time of issuing said warrant"; and, in the absence of a demurrer to such counter affidavit specially presenting the point that it embraced no general denial of indebtedness for rent, any competent evidence tending to show that no such indebtedness actually existed is admissible

in behalf of the defendant. Feagin v. McGowen, 115 Ga. 325 (41 S. E. Rep. 575). For particular affidavit made by one as attorney held to be insufficient, see Bryan v. Teal, 115 Ga. 740 (42 S. E. Rep. 34). When a landlord lawfully distrains for rent justly due, but in the subsequent proceedings acts irregularly or unlawfully, the tenant can not maintain a suit for such irregular or unlawful act unless he shows that he has thereby sustained special damage. Brown v. Howell, 68 N. J. L. 292 (53 Atl. Rep. 459).

RESULTING TRUSTS.

EPITOME OF CASES.

A

Sec. 649. General principles and particular cases. resulting trust can not be founded on an express agreement. Byers v. McEniry, 117 Ia. 499 (91 N. W. Rep. 797). Constructive trusts have their roots in actual or legal fraud, and generally arise in cases where there is no intention to create a trust. Alexander v. Spaulding, 160 Ind. 176 (66 N. E. Rep. 694). A resulting trust can not arise from a conveyance made for a valuable consideration; and an absolute conveyance does not create a constructive trust where there was no fraud, misrepresentation, imposition, circumvention, artifice, or concealment, or abuse of confidential relations. Verzier v. Convard, 75 Conn. 1 (52 Atl. Rep. 255). One bidding off property at a mortgage foreclosure sale, under an agreement made with the mortgagor by which he is to purchase the property for him, and on account of which he obtains it at a reduced price, may be charged with a trust in favor of such mortgagor. Coleman v. McKee, 24 R. I. 596 (54 Atl. Rep. 374). A sister receiving a conveyance of property from her brother in good faith with the intention to keep the same for him for his protection, and to prevent others from defrauding him and depriving him of the property, and with the intent only to manage the same for him, will be held to be a trustee for her brother. Odel v. Moss, 137 Cal. 542 (70 Pac. Rep. 547).

Sec. 650. Degree of parol proof required to establish a resulting trust. In discussing the degree of proof required