
    Peter vs. Schley's Lessee.
    Error ip Frederick County Court. Ejectment to recover a leasehold interest in a tract of land called Lost and Found. Defence was ¡taken on warrant, and plots were made.
    1. At the trial the plaintiff, (now appellee,) read In evidence a grant to Joseph Beall for the tract called Dost and Found, containing’ 8b acres, dated the 23d of April 1748, and also a grant to saiti Beall for a tract called Choice Improved, containing 649 acres, dated the 8th of November 1752, and also a lease from the patentee for part of said lands to John Beall, dated the 22d June 1765, and a lease from John Beall to Jacob Harman, dated the 1st day of April 1775. The last lease was as follpws: “Frederick county, in Maryland, to wit. This indenture, made the eleventh day of April in the year of our Lord seventeen hundred and seventy-five, between John Beall of the one part, and Jacob Harman, millwright, of the other part, both residents of the county and province afore* said, witnesseth, that the said John Beall and Jacob Harman, for and in consideration of the rent, services and covenants, herein after mentioned, contained, and to be performed on the part and behalf of the said John Beall and Jacob Harman, their executors, administrators and assigns, he the said John Beall, for himself,, his heirs, executors and administrators, hath demised, leased and to farm let, and by these presents doth demise, lease and to farm let, unto the said Jacob Harman, his executors, administrators and assigns, all that tract or part of a tract of land situate, lying and being in the county and province afore-, said, upon great Bennett’s creek, which was demised to him the said John Beall by a certain Joseph Beall, tor a term that is yet unexpired, containing one hundred acres of land more or less, contained within the metes and bounds expressed in a deed of lease from Joseph Beall to the said JolmBeall, which said lease is enrolled amongst the land records of Frederick county, reference thereunto being had will more fully and at large appear, together with all and singular the dwelling-houses, out houses, pastured enclosures, easements, and appurtenances whatever, hereby leased, transferred and conveyed, by these presents, for and during the term of sixty years from August next, commencing from the 24th day of March last past; yielding and paying for the same, during the said term hereby demised, unto the said John Beall, his executors, administrators and assigns, yearly and every year, commencing from the ^aforesaid twenty-fourih day of March last past, the annual rent following, to wit, the sum of one hundred pounds common currency for every year until twenty-fourth day of March, which will be in the year of our Lord seventeen hundred and seventy-nine, and the sum of fifty pounds common currency for one year’s rent commencing the twenty-fourth day of March seventeen hundred and eighty, and from thence and thenceforth, until the expiration and completion of the term hereby demised, the yearly rent of one pepper corn, if the same should be demanded; and if it shall happen that the rent before reserved in this indenture of lease, or any part thereof, should remain unpaid at any time seven days after the twenty-fourth day of March, which is the day the annual rent is hereby reserved, payable on the same, being lawfully demanded, that then and from thenceforth it shall and uiay be lawful to and for the said John Beall, his executors, administrators and assigns, into the said demised premises to re-enter, and the same demised premises, and every part thereof, to have again, hold, possess and enjoy, as in his and their former and proper estate, right, title and interest, and the said Jacob Harman, bis executors, administrators and assigns, thereout and therefrom to expel and put out; and the said John Beall hereby covenants for himself, his heirs, executors, administrators, that lie has good right to lease the said land for the term hereby demised; and the said Jacob Harman also covenants for himself, his heirs, executors, administrators and assigns, that he will pay the rent reserved at the stipulated time, or vacate the premises. In witness whereof the parties have hereunto interchangeably their hands, and affixed their seals, the date above written. And farther more, the said Jacob Harman engages for himself, his heirs, executors and administrators, to pay unto Joseph Beall, his heirs, executors, administrators or assigns, the sum of five pounds currency yearly and every year, from the above date, during the term of the above lease, being the original' annual rent.
    
      A lease by the giantee ofa tract of land for a part theieof,on the 22d June 1765, to J B. for 'il years, at the annual rent of 51, who on the util of April 1775, assigned the lease to J H for GO) ears at the annual rent of 300/ until the 24th March 1779, and 50/ for one year eomrrieneing the 24th March 1780, and a pepper corn annually for the residue of the term, with n clause of re-entry, &e and a covenant to pay the rents or vacate the premises, &c. and a covenant to pay the original lessee the rent of si during the term. J H, entered in 1775, and continued until 1780, and 'then left the premises. J It was in possessioivon 26th of* February 1785, claiming under the lessor of the plaintiff; and 330/ being unpaid tó J 15, he then entered tec. under the lease of the 11th of April 3775, aud possession -was given up to him by J It. On the 13th of April 1791, J Í5 leased to the defendant, who entered on the premises, improved (he same, and paid taxes, tee e\er sinci, lit Id, that it was optional in J H to pay ti e stipulated rent according to the ¡ease,or to sacate the premises The inn-vest winch J H had in the lease could not be vacated, or transferred to J B, by the tacts stated Ills interest in the land being for a term exceeding seven years, could not be tiansferred by him otherwise than in the way presi ribed by the act'of 1766, ch 34, Si ml no acts in pais were competent to that purpose His liability to pay the rent would continue until some act was done by him legally operative to vacate the premises
    Where the facts stated were not, m-the opinion of the court, a vacation of the premises, the power oj'ithe court is not to be transferred to the jury to make a iegal deduction flora the evidence, eoiuhi* ry to ike onuiion expressed by the court on these facts
    
      Sealed and delivered in the presence of Ardid, Boyd, Thos. Puce.” 1 Jacob Harman, (seal.) John Beall, (seal.
    The lease was duly acknowledged and recorded, and was truly located as the claim and pretensions of the plaintiff. He also gave in evidence the admissions of the defendant’s counsel, that the said granted and leased lands are truly located on the plots as located by the plaintiff He further read in evidence letters of administration granted on the estate of said Harman, (then dead) to the lessor of the plaintiff, dated the 11th pf March 1796. The defendant then offered evidence to prove that Jacob Harman, lessee of John Beall, entered on the leased land soon after bis lease in 1775, and continued on the premises uuiil 1780, and then left the premises, wept to Allegany, returned to Frederick county, and lived off the premises, then went to Virginia, and died there, not having legally assigned his interest therein. And that a certain Bamsower was in possession of the leased premises, by what title-not known, jen the 26th February 1785P but claiming the possession under the lessor of the plaintiff; and that 41380 of the rent being unpaid to John Beall, he on the evening of that day entered on the premises, demanded payment of his rent in arrear, of Ramsoiver, no other person being in possession, and the same not being paid, he took possession of the premises as his own, under the lease of the J 1th April 1775. That no deinand of the rent, or any entry was made by the said John Beall, or by his authority, before the said 26th day of February 17S5. That the said possession was given up to Beall by Ramsower. Th| plaintiff then offered evidence to prove, that Jacob Harman was in possession of the said lease, claiming under- the said lease. That Benjamin Nichols went on the land aforesaid after Harman left it, claiming, as he said, possession under If arman, and that when Nichols left the land, Jhlam Ramsower went on it, and staid there until John Beall took if, and that after the said Beall left it, John Pcter, deceased, took possession and retained it until his death. The defendant then read in evidence a lease executed by John Beall to a certain John Peter, for the same land, formerly leased to Harman, dated the ISth of April 1791; and further gave in evidence, that the said John Peter, in virtue of said lease, entered on and was possessed of the premises from the date of his lease to the time of bringing of this action, without claim, let or molestation, and built and made considerable improvements on the said demised pveroises; and further, that the assessment and taxes on the land in question vyere paid, for 1780, by Benjamin Nichhis, for 1781, by the same person, and for 1782, 1783 and 1784, by the lessor of the plaintiff. But, from thp entry made by John Beall on the 26’fh of February 1785, the said John Beall, and since his demise to Peter, the said Peter, hath paid all taxes and county charges arising due on said premises; and further, that John Peter the defendant, is son and devisee of John Peter, assignee of John Beall. The defendant then prayed the opinion of the court, and their direction to the jury, that if they find that Harman, the lessee of the premises, left the same in or before the year 1780, leaving the sum of ;6380 rent due and in aripar, and removed out of the state, not having legally assigned or transferred his interest, and died out of the state, and that John Beall afterwards, in 1785, entered on the premises, pad demanded of a certain Ramsower thereon,|th,e sen is due, and none was paid to him, and that he then took possession of the same, and afterwards leased them to John Peter, who entered thereon, and made valuable improvements thereon, and that no claim or demand of the premises was made by Harman until after his death, the same was demanded by his representative, the lessor of the plaintiff' — that such acts of Harman, nonpayment of rent, removal out of the state, and non-assignment of the lease and entry of Beall, amount to an abandonment and vacation of the lease by Harman, and the plaintiff'is not entitled to recover. Which opinion and direction the court, [Buchanan, Ch. J. and Clagett A. J.] refused to give. The defendant excepted.
    2. The defendant further prayed the opinion of the court, and their direction to the jury, that if the jury find the facts stated on the part of the defendant to be true, that then they are evidence to them of an abandonment and vacation of the lease by Harman, according to the stipulation of his covenant. But the court refused to give the direction. The defendant excepted; and the verdict and judgment being for the plaintiff', the defendant brought the present writ of error.
    The cause was argued before Chase, Ch. J. and Polk, Nicholson, Earle, and Johnson. J,
    
      Key, for the Plaintiff in error,
    referred to Co. Litt. 231, b. 338. 20 Vin. Ab. tit. Surrender, 139, 137; and Jackson vs. Demarest, 2 Caine's Rep. 382.
    
      Shaajf, Taney and V'JarjiehJ, for the Defendant in. error,
    referred to 3 Com. Dig. tit. Condition, (A. 6.) 86. Co. Litt. 204, 211, 337. b. 6 Com. Dig. tit. Surrender, (F.) 315. Rob. on Frauds, 247, 250, 253, 254, 260. Mackubin vs. Whetcroft, 4 Harr. & M‘Hen. 135; and Eldridge vs. Knott, Cowp. 216.
   Chase, Ch. J.

delivered the opinion of the court. The court are of opinion, that it was optional in Harman to pay the stipulated rent, according to the lease, or to vacate the premises.

The interest which Harman had in the lease could not be vacated or transferred to John Beall by the facts stated ?n the bill of exceptions, and offered to be proved by the defendant. His interest in the land being for a term exceeding seven years, could not he transferred by him otherwise than iti the way prescribed by the act of 1766, ch. 14, and no acts in pais were competent to that purpose. His liability to pay the rent would continue until some act was done by him legally operative to vacate the premises.

As the facts stated were not, in the opinion of the court, a vacation of the premises, the court did right in not transferring their power to the jury to make a legal deduction from the evidence, contrary to the' opinion expressed by the court on the same facts.

This court concur in opinion with the court below on both of the bills of exceptions.

JUDGMENT affirmed.  