yearly, grants to each of three persons the right to one-third of such yearly sum.69 And so if the reversion to which a rent is incident is conveyed to or otherwise acquired by two or more persons, as when the owner of the reversion grants to each of them the reversion in a distinct part of the land, each is, in the absence of a stipulation to the contrary, entitled to so much of the rent as is proportioned to his share of the land.70 And if the lessor grant the reversion of a part of the land, retaining the balance, he and his grantee are entitled to proportional shares of the rent." In case of the conveyance of a part or of separate parts of the reversion, the tenant, unless he consents to the apportionment made by the parties to the conveyance, is entitled to have an apportionment, based upon the respective values of the different parts of the land, made by a jury, in order to determine his respective obligations to the owners of the reversion.72

The right to rent reserved on a lease for years is terminated by the union of the leasehold and the reversion in one person,73 and, in case a union of title occurs as to a part only of the land, the rent is apportioned, and it is extinguished in an amount proportioned to the value of the land in which there is such unity of title, while still existent as regards the balance.74

Ards v. Watkin, Cro. Eliz. 637, 651, 2 Gray's Cas. 667; Rivis v. Watson, 5 Mees. & W. 255; Ryerson v. Quackenbush, 26 N. J. Law, 236; Farley v. Craig, 11 N. J. Law, 262.

TO Moodie v. Garnance, 3 Bulst. 153; Ehrman v. Mayer, 57 Md. 612; Crosby v. Loop, 13 Ill. 625.

71 Co. Litt. 148a; West v. Lassels, Cro. Eliz. 851; Linton v. Hart, 25 Pa. St. 193, 64 Am. Dec. 691; Worthington v. Cooke, 56 Md. 51. See ante, § 360.

72 Biiss v. Collins, 5 Barn. & Ald. 876. And see Cuthbert v. Kuhn, 8 Whart. (Pa.) 357, 31 Am. Dec. 513.

78 See post. § 363.

74 Litt, § 222; Co. Litt. 148a; Walker's Case, 3 Coke, 22b, 2 Gray's Cas. 661; Ehrman v. Mayer, 57 Md. 612; Peters v. Newkirk, 6 Cow.

(785)

The right to and liability for rent are also partially extinguished if the tenant ceases to have possession of part of the premises owing to a re-entry by the landlord, under the terms of the lease, into a part of the land;75 or in case the tenant is evicted from part of the land by title paramount, the landlord being entitled to so much of the rent as is proportioned to the part of which the tenant retains possession.76

A tenant cannot, without the consent of the owner of the rent, by any disposition of the land, or of a part thereof, apportion the rent so as to affect the right of such owner to collect the whole rent from any and every portion of the land, and, accordingly, an assignment by the lessee of the leasehold interest in a part of the premises does not affect the right to distrain on chattels on any part thereof, or to bring debt for the whole rent against the lessee, and, as before stated, it does not affect his liability on his covenant to pay rent. 78

A rent charge cannot, at common law, be apportioned, so as to exonerate part of the land, by act of a party, as distinct from act of the law; and consequently, if the ownership of the rent and of a portion of the land becomes vested in one

(N. Y.) 103; Nellis v. Lathrop, 22 Wend. (N. Y.) 121, 34 Am. Dec. 285; Leitch v. Boyington, 84 Ill. 179; Higgins v. California Petroleum & Asphalt Co., 109 Cal. 304. If, however, the rent consists of the delivery of an indivisible chattel, since it cannot be apportioned, it is extinguished. Litt. § 222; Bruerton's Case, 6 Coke, 1. 75 Walker's Case, 3 Coke, 22b, 2 Gray's Cas. 661; Collins v. Harding, 13 Coke, 58.

76 Co. Litt. 148b; Gilbert, Rents, 173; Lawrence v. French, 25 Wend. (N. Y.) 443, 2 Gray's Cas. 755; Christopher v. Austin, 11 N. Y. 216, 2 Gray's Cas. 762; Fillebrown v. Hoar, 124 Mass. 580; Halligan v. Wade, 21 Ill. 470, 74 Am. Dec. 108; Seabrook v. Moyer, 88 Pa. St. 417.

7 Walker's Case, 3 Coke, 24a, 2 Gray's Cas. 661; Broom v. Hore, Cro. Eliz. 633; Curtis v. Spitty, 1 Bing. N. C. 760; 2 Platt, Leases, 135.

78 Ante, § 360.

79

person, or if the owner of the rent releases a part of the land therefrom,80 the whole rent is extinguished. A rent charge may, however, be apportioned by agreement between the owners of the land and of the rent; this, in effect, constituting a new rent charge.81

On the theory that a contractual liability is not apportionable, the original lessee has been regarded as liable, on his covenant to pay rent, for the whole amount thereof, even, it seems, after his eviction from part of the premises by title paramount,82 and even though his assignee has surrendered part of the premises to the landlord.88 It does not seem that such a rule would usually be adopted in this country, in view of the wide extension of the principle of partial failure of consideration, and also of the freedom with which covenants are apportioned as regards the right of recovery thereon. Moreover, it would seem that the covenant might frequently be construed as one to pay the rent that may be due, rather than to pay the amount reserved, so as to make available, in an action on the covenant, all defenses which might be asserted in an action of debt.84

To Litt. § 222; Co. Litt. 147b, 148a; Gilbert, Rents, 154; Van Rensselaer v. Chadwick, 22 N. Y. 32; Ehrman v. Mayer, 57 Md. 612; Horner v. Dellinger (C. C.) 18 Fed. 495; Van Rensselaer v. Brad. ley, 3 Denio (N. Y.) 135, 45 Am. Dec. 451. The whole rent is not, however, extinguished, if the owner of the rent acquires a part of the land by descent. Litt. § 224; Co. Litt. 194b.

80 Co. Litt. 147b; Harrison, Chief Rents, 127; 18 Vin. Abr. 504. This is changed in England by 22 & 23 Vict. c. 35, § 10.

81 Co. Litt. 147b; Van Rensselaer v. Chadwick, 22 N. Y. 32; Church v. Seeley, 110 N. Y. 457.

82 Stevenson v. Lambard, 2 East, 575, 2 Gray's Cas. 679. Compare, Mayor of Swansea v. Thomas, 10 Q. B. Div. 48.

83 See Baynton v. Morgan, 22 Q. B. Div. 74, and comments in Woodfall, Landl. & Ten. (16th Ed.) 324.

4 In Poston v. Jones, 2 Ired. Eq. (N. C.) 350, 38 Am. Dec. 683, it was held that equity would relieve in such case against an enforcement of the covenant for the full amount

363. Extinction or suspension of rent-By release or merger.

A rent ceases to exist upon the making of a release of the rent by the owner of the rent to the owner of the land out of which it issues.8 85 But if the owner of the rent, whether it be a rent service or a rent charge, release in terms a part only of the rent, the balance remains existent as a charge on the whole land.86

If the owner of a rent charge acquire the land out of which it issues for an estate equal to or greater than his estate or interest in the rent, or if the rent is acquired by the owner of such an estate in the land, the rent is merged in the land, and extinguished, while, if the estate in the land is less than the interest in the rent, the unity of ownership merely suspends the rent during the continuance of such estate in the land. Thus, a rent charge for life is extinguished if the owner acquire an estate for life or in fee, while it is merely suspended if he acquire an estate for years.

87

At common law, as before explained, a rent service incident to a reversion less than a fee is extinguished by the merger of the reversion in the inheritance, as when a tenant for a term of years subleases for a less term, and his rever sion passes to the owner of the reversion in fee, or he acquires such reversion.88

Withholding of possession.

If the lessor refuse to allow the lessee to have possession of part of the premises, though this is not an eviction, because

85 Litt. §§ 479, 480; Co. Litt. 280a; Howell v. Lewis, 7 Car. & P. 566.

86 Co. Litt. 148a; 2 Leake, 407; Ingersoll v. Sergeant, 1 Whart. (Pa.) 337, Finch's Cas. 86.

87 Dixon v. Harrison, Vaughan, 39; Peto v. Pemberton, Cro. Car. 101; Freeman v. Edwards, 2 Exch. 732.

88 See ante, § 52(c).

not preceded by possession by the tenant, there can be no recovery of rent.89 And even if the denial of possession is of only a part of the premises, there can be no recovery of rent unless the tenant waives full performance of the landlord's contract.90 Nor can the lessor in such case recover upon a quantum meruit for the use and occupation of that part, possession of which is given. When the lessor does not himself withhold possession of part of the premises, but the tenant's failure to obtain it is due to a previous lease, not under seal, made by the same lessor to another person, it has, in England, been decided that no rent is recoverable by the lessor, on the theory that the lease is void as to such part," it being, on the other hand, considered that, if the second lease is under seal, as is necessary for the conveyance of a reversion, it is valid as a lease in possession of the land which the lessor had not previously leased, and as a lease of the reversion of the balance, subject to the previous lease." It has, however, been held in this country that the fact that a part of the premises is in the occupation of a tenant under a previous lease by the same lessor will not prevent a recovery by the latter for use and occupation of the other part by the tenant under the second lease."

92

"McClurg v. Price, 59 Pa. St. 420, 98 Am. Dec. 356, 2 Gray's Cas. 770. See Trull v. Granger, 8 N. Y. 115; Garner v. Byard, 23 Ga. 289, 68 Am. Dec. 527.

90 Holgate v. Kay, 1 Car. & K. 341; McClurg v. Price, 59 Pa. St. 420, 98 Am. Dec. 356, 2 Gray's Cas. 770. See Reed v. Reynolds, 37 Conn. 469; Tunis v. Grandy, 22 Grat. (Va.) 109. Contra, apparent. ly, in New York. See 1 McAdam, Landl. & Ten. 344.

91 McClurg v. Price, 59 Pa. St. 420, 98 Am. Dec. 356, 2 Gray's Cas. 770; Penny v. Fellner, 6 Okl. 386.

92 Neale v. Mackenzie, 1 Mees. & W. 747, 2 Gray's Cas. 727. See Tunis v. Grandy, 22 Grat. (Va.) 109, 132.

93 Ecclesiastical Com'rs of Ireland v. O'Connor, 9 Ir. C. L. 242, 2 Gray's Cas. 736.

4 Lawrence v. French, 25 Wend. (N. Y.) 443, 2 Gray's Cas. 755,