[Otis v. McMillan & Sons.] Jones on Mortgages, 848-9; Taylor's Landlord and Tenant, 502-04; 51 N. Y. 513. Nor was there any surrender and extinguishment of the original lease by the execution and acceptance of the new, since the acts of the parties rebut the idea of such surrender.- Van Rennselaer v. Penniman, 6 Wendell, 569; Springstein v. Schermerhorn, 12 Johns. 357; Livingston v. Potts, 16 Johns. 28; Taylor's Land. & T. S$ 507, 512. STONE, J.-The title to the lot, for the rent of which this suit was brought, was originally in Jewett. On the 20th May, 1859, Jewett, in consideration of five hundred dollars, payable in quarterly installments, leased the premises to Otis, for the term of one year, to commence June 1st, 1859, "with the privilege, on the part of said Otis, of renting said land, mill and improvements, from year to year afterwards for the space of ten years, at the annual rent of one thousand dollars, payable in quarterly installments as above; upon which terms the lease of said premises shall be annually renewed to said Otis, on his request." At the expiration of this lease for one year, to-wit, on the first day of June, 1860, the contracting parties agreed to renew the lease, and indorsed the following agreement on the lease, which they severally executed with their signatures and seals: "The within lease is hereby renewed from the first day of June, 1860, upon the conditions therein mentioned, to-wit, to continue in force for the term of ten years from this date, at the annual rent of one thousand dollars, payable in quarterly installments," &c. On the 4th day of March, 1870, the contracting parties again renewed the lease, by indorsing the following agreement upon it, executed with their signatures and seals: "This lease is extended from the first day of June, 1870, to the first day of June, 1850, upon the same terms and conditions." While the body of the original lease evidently contemplated a letting from year to year, for the space of ten years, if desired by Otis, the lessee, the actual renewals indorsed on the lease, were each for a solid term of ten years. was a modification of the original contract, which the parties were competent to make; and it is binding and valid, without further consideration than the mutual agreement of the parties. 1 Brick. Dig. 394, § 233. This After the second renewal of the lease, stated above, Jewett executed a trust deed, dated March 12th, 1872, by which he conveyed the lands, for the rent of which this suit is brought, to Bernstein, as trustee, to secure the payment of five thousand dollars to Caroline Schonfield, the beneficiary in the deed; with power in the trustee, in case Jewett made default, to advertise and sell the lands, for the payment of said sum of five [Otis v. McMillan & Sons.] thousand dollars. The trustee, Bernstein, sold under the power contained in the trust deed, and Vogel and wife became the purchasers. A recital in the deed herein next described shows that the conveyance by Bernstein, the trustee, to Vogel and wife, bears date April 16th, 1874. On the first day of May, 1874, Vogel and wife, by quit-claim deed, conveyed all their interest in the lands to William Otis, the lessee. On the 16th day of March, 1876, Jewett redeemed said lands from Otis, under the statute, and received from him, Otis, a quit-claim deed, re-conveying the lands to him, Jewett. It is shown that the money, with which this redemption was effected, was obtained by Jewett from Lyles. On the same day, March 16th, 1876, Jewett, for the recited consideration of $6,397.35, conveyed said lands to Lyles, by absolute deed of bargain and sale, with covenants of warranty, and also transferred and assigned to him the Otis lease. On the 15th day of April, 1876, Lyles executed a written agreement to Jewett, reciting that the deed from Jewett to him was received "with the agreement that he would sell said lot of land to said Jewett, for the sum of six thousand four hundred dollars, the amount the same cost, with interest from the 16th day of March, 1876," and therein bound himself, heirs, &c., "that on payment by said Jewett of said sum or sums of money to him, Lyles, heirs, &c., on or before the 16th day of March, 1877, he, his heirs, &c., shall re-convey said lot of land to said Jewett, his heirs or assigns." It was further stipulated, that there was "no debt existing from said Jewett to Lyles, in relation to said lot of land, and this transaction is a sale conditioned upon the prompt and actual payment, at the time named, of the sum or sums of money herein before named and described, and not in any manner a mortgage," &c. It was, in said agreement, further "declared, that if, at any time before the purchase of said lot by said Jewett, if he make such purchase as he is, by this agreement, permitted to make, I (said Lyles) shall have leased said lot, or any part thereof, to any person or persons, or made any agreement as to the lease or renting thereof, such lease or agreement shall remain in full force and effect, and be valid and effectual against said Jewett and his assigns, except so far as the same may be changed, modified, or relinquished, by the voluntary act of the said lessee or his assigns." It was further stipulated in the said agreement, that if Jewett re-purchased, he was also to pay to Lyles "such amount of taxes and expenses as may be in excess of the income which Lyles may then have realized from said property." On the 16th March, 1876, Jewett assigned and transferred to Lyles the lease of Otis, with all its renewals. At this stage [Otis v. McMillan & Sons.] of the transaction, Otis denied all further liability on his part to pay rent for the premises, according to the terms of the lease he had taken from Jewett, and claimed he was absolved from the obligations thereof. Jewett claimed that Otis was still bound by the terms of the original lease and its renewals. This controverted question was not then settled or agreed upon between the parties. Lyles desired to realize rent for the premises, and Otis refused to pay him rent according to the terms of the lease he had received from Jewett. Thereupon Lyles executed a lease of the premises to Otis, bearing date 16th March, 1876, for the term of ten years, at an annual rent of eight hundred and fifty dollars, payable quarterly, with certain other stipulations in regard to repairs. This lease contains this clause: "If J. F. Jewett redeems before 16th March, 1877, then this agreement to be null and void, and of no effect." On the 20th May, 1876, Lyles re-conveyed said premises to Jewett by quit-claim deed, reciting that he, Jewett, had paid to him, Lyles, said sum of six thousand four hundred dollars. On the 29th of the same month, Lyles transferred and re-assigned said original lease to Jewett. On the same day, May 29th, 1876, Jewett assigned and transferred said original lease to McMillan & Sons. The bill of exceptions also states, that the property, the subject of the original lease, was conveyed by Jewett to McMillan & Sons, as security for money or credit obtained from them, with which Jewett redeemed or re-purchased the lands from Lyles. On a single question of fact, there is an apparent conflict in the testimony. Some of the witnesses say, that when the title was conveyed to Lyles, he (Lyles) went into possession of the premises, and afterwards let them to Otis. Other witnesses say, Lyles never took possession, but only asserted his right to the premises as landlord, by force of the title he held. There is, also, evidence of an offer by Otis to surrender the possession to McMillan & Sons, when the title was put in them, and an agreement on their part to receive possession on certain conditions, which are not shown to have been complied with. No legal question is presented for our consideration, growing out of either of these phases of the evidence, and I do not feel called on to consider them. The record does not show any cancellation of the lease, by agreement of the parties, or that Otis was dispossessed, in fact, by any of his successive landlords. I am not able to perceive, or affirm that, as matter of fact, he has ever been dispossessed, or disturbed in his possession, since he first acquired possession under the original lease from Jewett. I think we must treat this case as if the continuity of Otis' actual possession has never been broken. The question is raised by charges given and excepted to, and asked [Otis v. McMillan & Sons.] and refused, whether any or all of the conveyances mentioned above put an end to Jewett's second renewal of the lease to Otis, or authorized the latter to treat the lease as no longer binding on him? This is the question of merit in this case. In Taylor's Landlord and Tenant, § 425, it is said: "The rights and liabilities of the respective parties to a lease are not confined to the immediate parties thereto, but will be found to attach to all persons to whom the estate may be transferred, or who may succeed to the possession of the premises, either as landlords or tenants. This result follows, as a necessary consequence of that privity of estate, which we have seen is incident to the relation of landlord and tenant, and which carries with it all those obligations which the original parties agreed should attach to, and continue to regulate that relation." And in section 426, the same author says: "A general grant of the reversion passes all the leases to which the property is subject, including the rents reserved, as incident to the grant." In English v. Key, 39 Ala. 113, it is said: "Rent is incident to the reversion; and the lessor's transfer of the reversion, though without the tenant's attornment to the assignee, or any express mention of the rent, carries with it the rent falling due thereafter." In Pope v. Harkins, 16 Ala. 321, this court, after stating that, when the relation of landlord and tenant is shown to exist, the tenant is estopped from denying the title of his landlord, added: "He may, it is true, show that the landlord has assigned his title, and that he is, therefore, bound as tenant to the assignee. This, however, is not disputing the title of his landlord, but it shows that he holds under, and in accordance with it, and that he owes rent to him who has the title which he acknowledged. * *If the premises are sold by execution against the landlord, the tenant may show this in bar of the landlord's action for rent, for the purchaser occupies the same relation to the landlord [tenant?] that a grantee by deed would." In Washburne on Real Property, Vol. 1, marg. page 336, it is said: "Corresponding to the right of the lessee to assign or underlet his interest, is the right which the lessor has to convey or assign his reversion, and thereby bring in a new party, with the rights of a reversioner. Nor is it necessary, now, that the tenant should attorn to such grantor or assignee, to give effect to the grant or assignment, in those States where the statute 4 Anne, ch. 16, § 9, is adopted. * As a general proposition, having few exceptions, the transfer of a reversion carries with it the rent due and accruing thereafter, by the lease creating the term for years, whether the assignment of the reversion be by deed or mortgage." In Dobson v. Culpepper, 23 Gratt. 352, it is said: "The [Otis v. McMillan & Sons.] lessee, or vendee, does not dispute the title of his lessor, or vendor, in showing that the former has conveyed the title to another, since the lease or contract of sale; but thereby rather confirms that title. The benefit of the estoppel created by the lease, or the contract of sale, is not destroyed, but merely transferred by the lessor's or vendor's own act, from him to his assignee; and the lessee or vendee can thereafter no more dispute the title of such assignee, than he could, before, dispute the title of the lessor or vendor." In the case of Lancashire v. Mason, 75 North Car. 455, the court, PEARSON, C. J., said: "It is familiar learning, that fealty and rent are incident to the reversion, and passes with it; and by a grant of the reversion, the assignee is substituted in place of the lessor, and the rent accruing thereafter is to be paid to him. After the assignment, the lessor has no more interest or concern in the matter, than the payee of a promissory note after he has indorsed it."-Norton v. Snyder, 2 Hun, N. Y. Sup. Ct. 82; Duff v. Wilson, 69 Penn. St. 316. "Every conveyance of an estate in any hereditament, corporeal or incorporeal, is good and effectual without attornment of the tenant; but no tenant who has paid his rent, without notice of such conveyance, is liable therefor."-Code of 1876, 2177. No estate, nor interest of any person, can be defeated, discontinued, or extinguished by the act of any third person having a possessory or ulterior interest, except in the cases specially provided by this Code."-Ib. § 2184. Under the redemption statute, speaking of lands that have been sold, and which it is proposed to redeem, it is declared that, "If the land is in possession of a tenant, notice to him by the purchaser or his vendee, of the purchase, after the lapse of ten days from the time of the sale, and that it has not been redeemed, vests the right to the possession in him, in the same manner as if the tenant had attorned to him."—Ib. § 2578. It results from these principles, that a sale by a lessor of real estate, during an unexpired leasehold term, under which a tenant is holding, does not, of itself, abrogate the lease, determine the leasehold estate, or authorize the landlord or tenant to treat the lease as at an end. Its only effect is to substitute the vendee of the reversion to all the rights of the original lessor, and to transfer to such vendee the fealty and duty to pay rent under the lease, not then matured, which, by the terms of the lease, the tenant had bound himself to pay to the original lessor. The vendee then becomes the landlord, by operation of law, whose title the tenant, so long as he remains undisturbed in the possession, may not dispute; and the tenant becomes tenant of the vendee of the reversion, whose right to the possession, for the unexpired term, the landlord may not |