
    Catharine Holsman and others v. Bella Abrams.
    (Before Duer, Bosworth, and Emmet, J.J.)
    October 19;
    December 24, 1853.
    Where a lease for a term of years contains a covenant on the part of the landlord, that at the expiration of the term the tenant shall be paid the appraised value of a dwelling-house to be erected by him on the demised premises, or that a new lease for the same term of years, at an appraised rent, (excluding from the appraisement the value of the dwelling-house) shall be granted to him; the tenant at the expiration of the term is entitled to retain the possession until the covenant shall be performed by the landlord or his representatives.
    But the tenant so retaining the possession is not discharged from the payment of rent, but is subject to the general rule, that a tenant holding over after the expiration of his lease, with the consent of the landlord, becomes a tenant from year to year, subject to all the terms and conditions of the original lease.
    The landlord, however, is equally bound by the same rul e, and therefore in an action for use and occupation, can recover no more than the rent originally reserved. He is not entitled to an increased rent proportioned to the increased value of the premises.
    The decision of the Supreme Court in Abel v. Radeliff, IS John. 505, is not applicable when the improvements made by a tenant during his term at its expiration belong to him, and not to his landlord. That case is, moreover, of doubtful authority.
    Verdict for plaintiffs reduced to rent reserved in the original lease, and judgment thereon, with costs.
    Case upon a verdict for plaintiffs taken subject to the opinion of the court at general term.
    The action was for the recovery of the value of the use and occupation of premises known as Ko. 20 Wooster street, in the city of Kew York, and came on for trial before Mr. Justice Paine, and a jury, on the nineteenth day of April, A. D. 1852, and terminated on that day.
    The complaint was in the usual form. The answer denied the tenancy.
    To sustain the issue on the part of the plaintiffs, their counsel called
    
      Mordeoai L. Marsh, who, being duly sworn, testified in substance, as follows:
    I know the defendant Bella Abrams; I reside at Ko. 22 Wooster street, in the city of New York, and the defendant at Ho. 20 Wooster street, adjoining my house. I have known Mrs. Abrams for twelve or fifteen years past, during which time she has occupied Ho. 20 Wooster street; she occupied those premises from the 1st May, 1847, to the 1st Hovember, 1849. In my estimation, a fair rent for the use and occupation of those premises, per annum, would be five hundred dollars; for the ground, irrespective of the buildings, from two hundred and ten to two hundred and twenty dollars, in that neighborhood ; I pay two hundred and ten dollars, per annum; the premises in question are nearer Canal street than mine, and are in that respect more favorably situated than mine.
    On a cross-examination by defendant’s counsel, witness further testified:
    I don’t know how the defendant occupied the premises twelve or fifteen years ago; don’t know under whom the Abrams family occupied; some of the family bought of Andrew Lockwood : a Mr. Smith built the house.
    
      Ezra P. Dmis, another witness produced on behalf of the plaintiffs, being duly sworn, testified as follows :
    I know the defendant Bella Abrams; I know the premises Ho. 20 Wooster street; Í was an appraiser of the premises in question some six or seven years ago—appointed by the owner of the lot; we estimated the lot to be worth three thousand two hundred and fifty dollars, and the ground rent of the premises was to be estimated at seven per cent, upon such appraised value.
    The counsel for the defendant here objected, that the matter testified of was in writing, and thereupon produced, upon call of the plaintiffs’ counsel, an agreement made between Hicholas Dean, guardian, and Bella Abrams, dated 12th January, 1845 ; also the appraisement by A. Lockwood and Ezra P. Davis, dated 14th February, 1846.
    The counsel for the plaintiffs thereupon took said papers, and read them in evidence to the court and jury.
    “House and Lot Ho. 20 Wooster street—Lot 25 feet front and rear, and 100 feet deep.
    
      “ It is agreed by and between the undersigned, that Ezra P. Davis, of the city of New York, real estate agent, and Andrew Lockwood, of the same city, builder, value the lot of ground in Wooster street, known as No. 20, of which the dimensions are above given, and also the brick house standing thereon; and that the said appraisers make report in writing, under their hands and seals, of the sum at which the said lot and the said house respectively shall be so valued by them; and should the said appraisers disagree in the valuations about to be made, or either of them, they are hereby authorized to call in the service of a third person as umpire, and the report of any two of them shall be considered conclusive between us,—and thereupon the guardian of the infant children, owners of said lot, will, at his option, either grant a new lease for twenty-one years of said lot, at a ground rent equal to seven per cent, per annum on the sum at which the said lot shall be so valued, or otherwise will pay .the full sum at which such appraisers shall estimate the house standing on the front of the lot.
    “ These proceedings being had in pursuance of covenants for that purpose, contained in a certain lease made of the same ground, by George Lorillard, late of the city of New York, deceased, to Ebenezer Smith, of the same city, bearing date the 17th day of January, 1825, which lease will expire on the first day of May next.
    “ In witness whereof, the parties now interested in the said lease, have hereunto signed their names this 12th January, 1845.
    “ Bella Abbams,
    “ N. Dean,
    “ Guardian for infant children of D. Holsman, dec’d.”
    “New York, 14th February, 1846.
    “We, the subscribers, have-examined the house and lot No. 20 Wooster street, and do estimate the said lot to be worth the sum of thirty-two hundred and fifty dollars, and the dwelling-house standing thereon to be worth the sum of twenty-five hundred dollars.
    “ A. Lockwood,
    “ Ezba P. Davis.
    
      House,
    $3250
    2500
    $5750
    “ Fees $10—one-half to be paid by each party.”
    'The variance in the year, stated in the agreement and the appraisement, is admitted to be a clerical mistake.
    The defendant’s counsel admitted, that the plaintiff Catharine Holsman, is the widow of Daniel Holsman, deceased, and that Catharine Ann Barclay, Margaretta L. Barclay, Daniel Hols-man, Maria M. C. Holsman, Eliza B. Holsman and Julia Holsman, the other plaintiffs, are the children and heirs at law of Daniel Holsman, deceased, and that Clement B. Barclay and James Barclay intermarried with two of the daughters before the commencement of this action, and after said appraisement; that the said children, at the time of the appraisement, were all under age; and that Daniel Holsman was deceased at the time the agreement was entered into between Nicholas Dean, guardian, and the defendant.
    The defendant’s counsel also admitted, that he (Charles W. Sandford,Esq.) on behalf of the defendant, paid to Nicholas Dean, the guardian of said infant, children, the sum of two hundred and twenty-seven dollars and fifty cents, for the ground rent of the premises in question, for the year beginning on the first day of May, 1846, and ending on the first day of May, 1847, with the understanding, that such payment should not prejudice the rights of the defendant to a new lease, or the payment for her buildings; also, that upon the partition of the estate of George Lorillard, deceased, the lot in question was set apart to Daniel Holsman, one of his heirs, subject to the lease held by the defendant.
    The lease was here produced by the counsel for the defendant, and handed to the counsel for the plaintiffs. It was thereupon read in evidence, as follows.
    “This Indenture, made the seventeenth day of January, in the year of our Lord one thousand eight hundred and twenty-five, between George Lorillard, of the city of New York, tobacco manufacturer, of the first part, and Ebenezer Smith, of said city, builder, of the second part, witnesseth, that the said party of the first part, for and in consideration of the rents, covenants, and agreements hereinafter mentioned, &c., conveys all those two certain lots of ground, situate in the Eighth Ward of the city of New York, known and distinguished on A. Hammond’s map, as lots numbers one hundred and fifty-seven (157) and one hundred and fifty-eight (158), containing in breadth, in front and rear, fifty feet, and in length on each side, one hundred feet, made by Daniel Ewen, in the month of February, in the year 1821. To have and to hold the said above mentioned and described premises, with the appurtenances, unto the said party of the second part, his executors, administrators, and assigns, from the first day of May, one thousand eight hundred and twenty-five, for and during, until the full end and term of twenty-one years, thence next ensuing, and fully to be completed and ended, yielding and paying therefor, unto the said party of the first part, his heirs or assigns, yearly and every year, during the said term hereby granted, the yearly rent, or sum of one hundred and twenty dollars, lawful money of the United States of America, in equal quarter yearly payments, to wit, on the first days of August, November, February, and May, in each and every of said years; (then follows a covenant for re-entry, and a covenant to pay rent, and taxes, and assessments) and that on the last day of said term, or other sooner determination of the estate hereby granted, the said party of the second part, his executors, administrators, or assigns, shall or will peaceably and quietly •leave, surrender, and yield up unto the said party of the first part, his heirs, or assigns, all and singular the said demised premises, (then follows a covenant for quiet enjoyment.) And it is mutually covenanted and agreed by and between the said parties respectively, for themselves severally, and for their several respective heirs, executors, administrators, and assigns, by these presents, that all such front dwelling-houses having brick fronts, or being entirely composed of brick, as shall be erected and made with new materials upon said lots of ground hereby demised by the said party of the second part, his executors, ad ministrators, or assigns, and remaining thereon at the expiration of the said term hereby granted, and also the said demised lots of ground shall then be valued and appraised by indifferent persons, one of whom shall be chosen for that purpose by the said party of the first part, or his legal representatives, and one other to he chosen by the said party of the second part, or his legal representatives, and if the said two persons so chosen shall not agree in opinion respecting the premises, then such two persons shall nominate a third indifferent person, and that such three persons so chosen, or any two of them, shall make such, their valuations or appraisements, of the said premises in writing, under their hands and seals, and that thereupon the said party of the first part, his heirs, or assigns, shall and will, at his and their election, either pay to the said party of the second part, his executors, administrators, or assigns, the full sum' of money at which such dwelling-houses shall be so valued at; or otherwise shall and will grant to the said party of the second part, his executors, administrators, or assigns, a further lease of said demised premises for the further term of twenty-one years, from the expiration of said term hereby granted, and that the yearly rent to be reserved in such further lease so to be granted, shall be such sum as would be produced by the sum the said lots shall be valued at, put at interest at the rate of seven per cent, per year, in which said further lease the said party of the second part, or his legal representatives, shall be bound to pay all such taxes and assessments, both ordinary and extraordinary, as shall be charged or assessed on the said demised premises during such new lease, at his and own proper cost. In witness whereof the said parties to these presents, _ have hereunto interchangeably set then’ hands and seals the day and year first above written.
    “ [l. s.] George Lorillard,
    “ [l. s.] Ebenezer Smith.
    “ Signed, sealed, and delivered in the presence of “ Jacob F. Hagadoen.”
    It was admitted that this lease was assigned to Bella Abrams, 1st December, 1840.
    
      The defendant’s counsel admitted that there was an error in the amount of rental, and that it should be one hundred and twenty-five dollars, instead of one hundred and twenty.
    The plaintiffs here rested.
    The counsel for the defendant, to sustain the issue on her part, took the stand as a witness.
    
      Charles W. Bamdford, being duly sworn, deposed as follows :—
    After the appraisement was made, and about the first of May, 1846, I had drawn in my office this lease and counterpart, dated 1st May, 1846, and they were executed in my presence by Bella Abrams, and taken by me to Mr. Dean to get his signature, which Mr. Dean declined to give without authority from the court—said leases have ever since been in my possession, ready to be accepted at any moment when the parties would execute them down to the commencement of this suit.
    The counsel thereupon read the said lease in evidence.
    Dated 1st day of May, 1846. Between Hicholas Dean, of the city of New York, guardian of Catharine Ann Barclay (late Holsman), Margaretta L. Barclay (late Holsman). Daniel Holsman, Maria M. C. Holsman, Eliza B. Holsman, and Julia Holsman, infant children of Daniel Holsman, late of New Jersey, deceased, of the first part, and Bella Abrams, of the city of New York, single woman, of the second part. Conveys all that certain lot of ground situate in the Eighth Ward of the city of New York, known and distinguished on a map of the property of Abijah Hammond, made by Daniel Ewen, City Surveyor, in the month of February, 1821, filed in the office of Register in and for the city and county of New York, in tin case, Ho. 13, as lot Ho. 157 (one hundred and fifty-seven), but now known as Ho. 20 Wooster street, bounded north-westerly in front by Wooster street, north-easterly by lot number one hundred and fifty-eight on said map; south-easterly, in the rear, by lot number one hundred and forty-six on said map; and south-westerly by lot number one hundred and fifty-six on said map, containing in breadth, in front and rear, twenty-five feet, and in length, on each side, one hundred feet, for the term of twenty-one years, from the first day of May, 1846, at the annual rent of two hundred and twenty-seven dollars and fifty cents, in equal quarter yearly payments.
    Containing provision for re-entry and covenants, on part of the party of second part, for payment of rent, payment of all taxes, duties, and assessments, ordinary and extraordinary, during term, and surrender of premises on last day of term, or other sooner determination of lease. Also a covenant on part of party of the first part, for quiet enjoyment.
    Signed and sealed by Bella Abrams.
    On a cross-examination by counsel for the plaintiffs, the witness further testified as follows:
    I drew the agreement for the appraisement; I was consulted by Miss Abrams before the appraisement, and by Mr. Dean afterwards. I was the counsel for the Lorillard estate, and conducted the partition proceedings relative thereto. I was acting as counsel for both parties in the matter of procuring the execution of the new lease. I offered the lease to Mr. Dean, at his own office, about the first day of May, 1846. Mr. Dean asked me, at the time I took the lease and counterpart to him, if he had the right to execute them as guardian. I told Mr. Dean I would take the responsibility of the execution for Miss Abrams, if he would sign them; but that he had not a strict right, as guardian, to execute the lease without an order from the court of chancery. I am not certain whether I got the appraisement from Mr. Davis or Mr. Dean; I am inclined to think there were two valuations, and that one was handed to me, and one to Mr. Dean. I was employed by Mr. Dean to draw an application to the court of chancery for leave to execute the lease; I have the petition in my hands, signed and verified by Mr. Dean, the 8th of May, 1846. No order of the court was obtained.
    The direct testimony being resumed, the witness testified as follows: The petition and affidavit, after been signed by Mr. Dean, were given to Mr. Dean for the purpose of getting the consent in writing.
    (Counsel for the plaintiffs here objected to witness’s reason for not getting the order. His honor, the judge, overruled the objection, and the plaintiffs’ counsel excepted.)
    
      Witness continued: After Mr. Dean had sworn to the petition, 1 left it with him. to get the consent in writing of Mrs. Holsman, the widow of Daniel Holsman, and mother of the infants who resided in New Jersey, she being their guardian in the State of New Jersey, where they reside. The papers came back, with Mrs. Holsman’s signature, to me some time afterwards; my impression is, some two or three months. I then took the papers to Vice Chancellor McCoun, with a draft order, for the purpose of getting his approval thereof, but the Tice Chancellor declined making such order without a reference, and the usual bond to each of the infants. I reported that fact to Mr. Dean, and Mr. Dean said he would not give any such bond, unless the Holsman family would 'furnish the security ; nothing has been done about it since. In making the application, I acted as the counsel for Mr. Dean.
    The evidence here closed.
    The counsel for the defendant thereupon moved for a non-suit, on the following grounds:—
    1. That plaintiffs have not shown that the defendant occupied the premises in question by their permission.
    2. That proof shows defendant occupied under George Lorillard, and held by title prior to that of plaintiffs.
    3. That the defendant, having performed the covenants in the lease on her part, the plaintiffs cannot collect any rent from her until they have performed the covenants on their part.
    4. That the submission on the part of the guardian not being binding upon the plaintiffs, and being disavowed by them, is not binding upon the defendant.
    The court denied the motion, and the counsel for the defendant excepted.
    Thereupon, under the advice and direction of the court, and with the consent of the counsel for the respective parties, the jury found a verdict for the plaintiffs of seven hundred and twenty dollars, subject to the opinion of the court on this case, to be heard at a general term thereof, and also to adjustment.
    B. T. Kissam, for the plaintiffs,
    insisted that they were entitled to judgment upon the verdict as rendered, and relied upon the following points and authorities.
    I. The occupation of the premises by the defendant is clearly proved, and is not disputed.
    II. The defendant so occupied by the permission of the plaintiffs. 1. Proof shows that Catharine Holsman is the widow, and Catharine Ann Barclay, Margaretta L. Barclay, Daniel Hols-man, Maria M. C. Holsman, Eliza B. Holsman, and Julia Hols-man, the heirs-at-law of Daniel Holsman, deceased, to whom the premises in question were set apart in severalty, upon a partition of George Lorillard’s estate, as one of his heirs-at-law ;—the Barclays having married two of the daughters, and Nicholas Dean having been appointed the guardian of the infant children, prior to the commencement of this suit. 2. Payment of rent to Nicholas Dean, as guardian for infants, estops the defendant from disputing the title of the plaintiffs as landlords. (Osgood v. Dewey, 13 J. R. 240; Nellis v. Lathrop, 22 Wend. 121.) 3. The agreement made and entered into between Bella Abrams, the defendant, and Nicholas Dean, the guardian, establishes the fact that the occupation was by permission of the plaintiffs. (Little v. Martin, 3 Wend. 219.) 4. The tender of the lease executed by Bella Abrams, the defendant, to Nicholas Dean, the guardian, is a further acquiescence in the title of the plaintiffs.
    III. The value of the use and occupation is distinctly proved and established. 1. By the testimony of Marsh and Davis. 2. By the agreement between the defendant and Nicholas Dean, the guardian, and the appraisement made thereunder. (See 2 R. S., 3d edit., p. 32, § 26; Williams v. Sherman, 7 Wend. 109.) 3. By the payment of $227.50 the previous year. (Abeel v. Radcliffe, 15 J. R. 507; Bradley v. Covil, 4 Cow. 350; Evertsen v. Sawyer, 2 Wend. 507, 512.) 4. By the lease executed by Bella Abrams, the defendant.
    TV". The action for use and occupation can be maintained against a person holding over, under a covenant for renewal, contained in an expired lease of the same premises, and a failure on the part of the plaintiffs to fulfil the covenants on their part, contained in said lease, will not relieve the defendant from the payment of rent. (Abeel v. Radcliffe, 13 J. R. 297; id. 15 J. R. 505; Allen v. Pell, 4 Wend. 506; Etheridge v. Osborn, 12 Wend. 529; Sickles v. Frost, 15 Wend. 559; Holsman and others v. Abrams—decided in this court June 28, 1851, and again March 6, 1852.)
    V. The rent reserved in the original lease from George Lorillard to Ebenezer Smith, being for the lot alone, without any buildings thereon, cannot be the criterion in ascertaining the value of the rent of the house and lot, and the law raised no implied agreement in such a case, that the old rent shall be the measure of damages. (Abeel v. Radcliffe, 15 J. R. 505.)
    YI. The plaintiffs are entitled to judgment for the amount claimed in the summons, with interest, from the several quarter days upon which the rent fell due and payable.
    
      C. W. Sandford, for defendant, contra.
    
    1. The defendant does not hold under the plaintiff, but under the original lease, and is not liable in an action for use and occupation.
    IT. The defendant having complied with all the terms of the lease on her part, the plaintiff cannot collect any rent until they have performed the covenants on their part.
    III. Where, by the terms of a lease, the tenant is to be paid for improvements, at the expiration of the term, an agreement by the lessor will be implied that the lessee may retain possession until such payment is made, although the term has expired (Van Rensselaer v. Penniman, 6 Wend. 569).
    IV. Where a tenant for a term of years holds over, without any new agreement between the parties, he holds, subject to all the covenants of his old lease, applicable to his new situation ; and the law implies the same terms (De Young v. Buchanan, 10 Gill. & Johs. 148; Philips v. Menge, 4 Wharton, 226).
    Y. The submission of the guardian not being binding on plaintiffs, and being disavowed by them, is not binding on defendant.
    YI. If plaintiffs can recover at all in this action, they can only recover the rent reserved by the original lease.
   By the Court. Duer, J.

We do not at all doubt that the defendant is entitled to retain the possession of the demised premises, as she now holds them, until the owners of, the reversion, in performance of the covenants in the original lease, shall have actually paid or tendered to her the appraised value of the dwelling-house, which has been erected on the lot, or shall have granted to her a new lease, for the additional term of twenty-one years ; and, to this extent, the case of Van Rensselaer v. Penniman (6 Wend. 596), to which we were referred, may be regarded as a decisive authority. But neither this, nor, as we believe, any other adjudged case, can be cited, to prove that, while she thus retains the possession, the relation of landlord and tenant is wholly dissolved, so as to discharge her absolutely from the payment of rent; and, to a doctrine so unreasonable in itself, unless shown to be established as law, it is not probable that the assent of this Court will ever be given. It has long been, and probably still is in the power of the parties,—of the plaintiffs as owners of the fee, and of the defendant as tenant,—to demand, and compel a specific performance of the covenants in the original lease, but, as neither party has chosen to take the necessary steps for this purpose, we see nothing to distinguish this from any other case, in which the tenant holds over, after the expiration of the lease, with the consent of the landlord. It is, therefore, by the rules of law applicable to such .cases, that our decision must be governed.

But although we must hold that the defendant is liable in the present action, it by no means follows, that she is liable for the whole rent which the plaintiffs claim, and for which the verdict has been conditionally rendered.

It is settled law that, when a tenant for years is permitted to hold over after the expiration of his term, he becomes a tenant from year to year, according to the terms and conditions of the original lease, which, with the single exception of the duration of the term, continues to be, not only the proper, but the sole evidence of the subsisting contract of the parties. It is, therefore, the rent reserved by this lease, and that alone, that the tenant is bound to pay, and it is this, and no more, that the landlord can lawfully exact, unless it is proved to have been altered by a new and express agreement (Knight v. Darley, 1 Term R. 162; Dox v. Bell, 5 Term, 471; Digby v. Atkinson, 4 Camp. 277; Harding v. Crithon, 1 Esp. N. P. Cases, 59; Do Young v. Buchanan, 10 Grill, and John. 149; Philips v. Menge, 4 Whar. 226). It was not denied by the counsel for the plaintiff, that the general rule is such as we have stated, but he insisted that there are valid reasons for excepting the present case from its application. He required us to hold that the payment to the guardian of the infant plaintiffs, of the sum of $229.50, as the rent for a single year, is conclusive evidence of a new agreement, binding her to the payment of the same rent so long as her possession has lasted, and shall continue.

But it is impossible for us to give this effect to the payment in question, without contradicting our former decisions, by which, in sustaining the demurrer of the plaintiffs to the answer first interposed by the defendant, we held that the agreement between herself and the guardian bound him, either to grant her a new lease for twenty-one years, or to pay her the estimated value1 of her dwelling-house, and the evidence clearly shows that it was in consequence of this agreement, and of the appraisement that followed, and in the full belief that a new lease would be given, in which the sum she then paid, would be reserved as the annual rent, that she consented to the payment now relied on.

We cannot, 'therefore, regard the payment as evidence of a promise to pay the same sum as an annual rent, so long as she was suffered to hold over under the original lease, when it is proved to have been made under a distinct agreement, which we have adjudged to be void, and upon a consideration that has wholly failed. It would be most inequitable to charge her with an increased rent, while the lease, which was to be the consideration of its payment, is still withheld, and we cannot hold that she is bound by an agreement which the plaintiffs, as made by their guardian, without authority, have chosen to repudiate. We cannot say that an agreement, not binding on the plaintiffs, is binding on her.

It was next insisted, that there is another and distinct ground upon which we are bound to say that the plaintiffs are entitled to the whole rent which they demand.

The rent in the original lease, it is said, was merely a ground rent, having reference only to the naked value of the lot, and that, as a dwelling-house has since been erected, by which the value of the occupation of the premises has been greatly increased, it it reasonable and just, that a rent proportionate to this increase should now be allowed ; and, in support of the position that the plaintiffs have a legal right to demand this allowance, we were referred to the decision of the Supreme Court in Abeel v. Radcliff (15 John. 505), as a direct and controlling authority. Our examination of that case, however, has led us to a very different conclusion. If it is to be regarded as an authority at all, we are satisfied that it is directly opposed to the claim of the plaintiffs. It is true that, in Abeel v. Radcliff, although there was no evidence of a new agreement, a tenant holding over was held to be liable to an increase of rent, in proportion to the increased value of the premises, but the only ground of this decision was, that the improvements to which the increased value was owing, and which had been made during the term, became, upon its expiration, the sole property of the landlord. The dwelling-house, in the case before us, since the expiration of the. lease, has been, and still is, not the property of the plaintiffs, but of the defendant. In a qualified, but still in a legal sense, by force of the covenants in the original lease, she is its owner, and it is only by granting her a new lease, or by paying her its value, that the plaintiffs can divest her title. The reason, therefore, for admitting that exception from the general rule, which the decision in Abeel v. Radcliff appears to sanction, is wholly false.

But were the facts in this case exactly similar to those in Abeel v. Radcliff, we are by no means prepared to say that we should hold ourselves bound to follow the decision. It was that of a bare majority of the court. Chief Justice Thompson and Hr. Justice Platt dissented from the judgment, and the former supported his dissent by reasons which we think it would be difficult to answer. It is certain that the case stands alone, and in principle is not easy to be reconciled with prior authorities ; but, admitting it to be sound law, we cannot doubt that even the judges who concurred in the decision, would have rejected the claim of the plaintiffs in this suit, in the extent to which it has been urged, They must haves done go, in consistency with their own reasoning,

Onr conclusions, then, are, that no valid reasons have been shown for excepting this case from the general rule, that a tenant holding over is liable only for the rent mentioned in his lease, and that, on the other hand, there are- special reasons for enforcing the rule in its strictest application, It is exactly the rule which a just regard to the intention of the parties to the original lease, as manifested by its terms, requires us to follow, The covenants to which we have referred evidently show, that it was not intended that the owner of the reversion should he placed in a situation to demand an increased rent upon the expiration of the lease, by any other means than by granting a new lease, or paying td the tenant the value of the improve - ment.

Hence the plaintiffs, until, by performing these covenants, they shall secure to the defendant the benefit to which she is entitled, will have no right to complain that the only rent they can he permitted to recover, is that which the lease stipulates to be paid. It may be, and doubtless is, greatly disproportionate to the present value of the premises, but it is that to which the law, and the contract of their ancestor, alone entitles them.

The original lease embraces two lots, and reserves an entire rent of $125. The defendant is the tenant of only one lot, and apportioning the rent equally, is liable but for the annual rent of $62.50,

It is upon this principle that the verdict must be reduced and adjusted.

Judgment for the plaintiffs, upon the verdict, as reduced,  