
    Walter S. Church, App’lt, v. John T. Seeley, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Landlord and tenant—Rent charge—Apportionment op the rent— When it can be made—Manor leases.
    The manor leases create a rent charge, and an apportionment is possible by the concurrent assent or action of both the landlord and the tenant.
    2. Same—Where there has been a severance op the rent.
    In 1882, the plaintiff, who was the owner of the rents reserved in one of the Van Rensselaer leases, recovered in ejectment for non-payment of rent ■ all of the land included in the lease except ten acres, and took possession thereof, which possession he still retained at the time when this action was brought, which was after the expiration of the time fixed by statute for redemption. The severance of the lease by the landlord in the pursuit of his remedy was preceded by long continued payments by the owner of the parcel in controversy, measured by the proportion which his holding bore to the full quantity of the lot; this had continued for many years. These pro rata payments were accepted by the lessor. Held, that there was a severance of the rent by the act and assent of the landlord.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment in favor of the defendant, entered upon the report of a referee.
    The plaintiff was the owner of the rents reserved on two of the Van Rensselaer leases, one called the Abbott and Rush lease, covering 152i acres, known as lot 402; the other called the Tubbs lease, covering 60 acres, known as lot 378. In 1882 the plaintiff recovered in ejectment for non-payment of rent, all the land included in the Abbott and Rush lease, except ten acres, and took possession of the same and still retains it, unless he has sold the property. In 1881 the plaintiff recovered in ejectment for non-payment of rent, all of the land included in the Tubbs lease, except 60 acres, and took possession and still retains it, unless he has sold the property.
    The plaintiff being thus in possession of 140 acres of the first lease, and 100 acres of the second lease, and being no longer liable to have them redeemed from him, commenced, this action in 1883, to recover from the defendant ten acres of lot 402, and sixty acres of lot 378, occupied by him, for non-payment of rent.
    The amount of rent due on the Abbott & Russ lease, lot 402, at the time of the recovery, in the ejectment action, was about $4,972.78 (the precise amount is not important), and that amount, it is assumed, was stated in the judgment therein, pursuant to the Code, section 1507. The amount of rent due on the Tubbs’ lease, lot 378, at the time of the recovery, in the ejectment action, was about $2,953.82, and that amount was, it is assumed, in like manner stated in the judgment in that action.
    The referee in this action found that the actual amount due on lot 402, at the commencement of this action, was $4,978.81, and that the amount due on the ten acres sought to be recovered was $350.61: that the actual amount due on lot 378 at the commencement of the action was $2,975.45, and the amount in arrear on the sixty acres sought to be recovered was $410,50, making the total in arrear to the plaintiff $761.11, and gave judgment for the plaintiff accordingly.
    
      S. W. Rosendale, for app’lt; W. Youmans, for resp’t.
    
      
       Affirming 39 Hun, 269.
    
   Finch, J.

We agree with the general term in the result which it adjudged, and should adopt its opinion but for its discussion of a subject not necessarily involved in the case, and the soundness or unsoundness of which we ought not to determine in the present action. That opinion intimates that the effect of plaintiff’s successful re-entry upon a part of the premises leased in fee may be to extinguish the rent upon the remainder. The defendant, however, makes no such claim, but concedes the plaintiff’s right to re-enter upon such remainder for rent in arrear, and the whole controversy is simply what amount of such rent should be stated in the judgment as the basis of a possible redemption. The controversy, therefore, proceeds upon the assumption that there is rent in arrear which should be stated in the judgment, and that the amount is either the whole unpaid rent, treating the lease as an entirety, or the proportionate share of the sixty acres, and of the ten acres treating the rent as having been apportioned.

These manor leases have been held to create a rent charge rather than a rent service, and while at common law it was said that a rent charge could not be apportioned because it issued out of the whole land, we have held that such an apportionment is possible by the concurring assent or action of both the landlord and the tenant. Van Rensselaer v. Hays, 19 N. Y., 76; Van Rensselaer v. Chadwick, 22 N. Y., 34, 35.

And so, the possibility existing, we are concerned only with the facts which are claimed to have effected an apportionment. The plaintiff recovered, in ejectment, one hundred acres of lot 378, which contained the sixty acres additional involved in this action, as held under the lease to Martin Tubbs, and the day of redemption has passed. In like manner he recovered and holds the whole of lot 402, except the ten acres owned by the defendant under the lease to Abbott & Buss, and which ten acres, with the sixty, constitute the lands in controversy. The opinion of the general term points out very clearly the injustice of a rule which would permit .a lessor in fee to have the bulk of the land, and, at the same time, all the rent in arrear, and suggests adequate reasons in support of a different result. The severance of the lease by the landlord, in the pursuit of his remedy, was preceded by long continued payments by the owners of the parcels in controversy, measured by the proportion which their holdings bore to the full quantity of the two lots, and this had continued for many years. These pro rata payments were accepted by the lessor, and although credited, as is said, upon the whole lease, as an entirety, do not appear to have been accepted upon that condition. And when that long course of dealing is followed by a re-entry upon a part of the land, leaving the defendant undisturbed in the possession of his seventy acres, it would seem as if a severance of the rent by the act and assent of the landlord, was a reasonable and just inference.

But beyond that, the application and operation of the common law has been seriously affected by the statutory provisions for redemption, and those which seem to place it in. the power of occupants of separate parcels to compel a severance of the action when the remedy sought is ejectment. It does not here appear that the severance relied upon was by compulsion and against the will of the lessor; (Code Civ. Pro., §§ 1504, 1505, 1507, 1516); and treating it as voluntary and in connection with the actual apportionment made and accepted, we think we'are justified in affirming the judgment, without, for the present, going beyond the facts before us.

The judgment should be affirmed with costs.

All concur, except Peckham, J., not sitting.  