
    H. & J. Failing vs. Schenck.
    A reservation of rent is not essential"to the existence of a leasehold estate.
    The right of a tenant or one claiming under him to set up an adverse possession, does not depend upon the landlord’s right to receive rent, but upon his power to enter.
    Accordingly, where the defendant in ejectment set up an adverse possession in one who, as was shown, entered under the plaintiffs’ ancestor by virtue of a lease for years reserving an annual rent; held, that the lease was sufficient to repel the defence, though the circumstances were such as to warrant the pre. sumption of an extinguishment of the entire rent shortly after the term com. menced.
    An adverse possession of at least 25 years must be shown in order to bar a right of entry, where the old statute of limitations commenced running before the revised statutes went into operation.
    
      Ejectment for nineteen acres of land, tried at the Montgomery circuit, in November, 1840, before Willard, C. Judge; The case was this : The premises in question were a part of a farm containing 480 acres of land formerly owned and occupied by the plaintiffs’ grandfather, Nicholas Failing, who died in 1788 leaving five children, viz. Henry N. Failing the plaintiffs’ father, Maria, wife of Lawrence Gros, and three other daughters. George Rapp and Stephen Ultzever went into possession of a part of the farm, including the premises in question, in 1786, under a lease for thirty years executed by Nicholas Failing on the 1st of November of that year. The lease reserved an annual rent of 66 thirty skipples of wheat.” Ultzever conveyed his interest in the lease to Rapp. The plaintiffs’ father died in 1833, leaving six children ; and the plaintiffs claimed to recover one-third of one-fifth of the premises in question. The defendant was in possession at the time the suit was brought, claiming title.
    In January, 1795, Lawrence Gros. and wife conveyed the whole farm—480 acres—to Johan Daniel Gros in fee, reserving to Rapp and Ultzever their unexpired term in the lease 5 and in February, 1805, Johan Daniel Gros executed a warrantee deed to Rapp of the one hundred acres occupied by him under the lease. Rapp continued in possession till 1830, wrhen he executed a warrantee deed of the premises in question to Peter Cowan, who thereupon took possession. In 1832 Cowan sold the premises and delivered possession thereof to Herman J. Ehle, from whom the defendant derived title. There was no evidence that any rent had ever been paid on the thirty year lease. The defendant’s counsel requested the judge tti charge that Rapp’s possession should be regarded as adverse since the deed to him in 1805 from Johan Daniel Gros. The judge was also requested to charge that the possession of Rapp and those claiming under him was adverse from the time when the lease expired ; and that this was enough to bar the plaintiffs’ right of recovery. The judge refused to charge as requested ; but instructed the jury that the plaintiffs were .entitled to recover one undivided third of one-fifth of the premises in question. The jury rendered a verdict for the plaintiffs, and the defendant now moved for a new trial on a bill of exceptions.
    
      D. Cady, for the defendant.
    JV*. Hill, Jun.j Sf D. Wright, for the plaintiffs.
   By the Court, Cowen, J.

I am inclined to think that, under the circumstances, had the question been material, the case might have been a proper one for saying that' the rent due on the lease executed by Nicholas Failing must be presumed to have been extinguished, had an action been brought for that; at least the question of extinguishment might have been proper for the jury. But I find no case which holds, as a consequence, that we are to presume the relation of landlord and tenant broken up, so as to let in an adverse possession during the continuance of the lease. Take it that, upon circumstances, you may presume the rent extinguished shortly after the lease was executed ; and even suppose a release of all claim for rent. The only result, as appears to me, is, that the lessee is to be deemed as having held for the residue of the term discharged of the rent; not that the reversion was extinguished also, or that a state of things arose which entitled the landlord to enter, and therefore let in the statute of limitations to run against him by reason of an adverse possession in his tenant or indeed in any other person. The statute of limitations, quoad the land, does not turn on the right of the landlord to receive rent; but on his power to enter. The Stat. 21 Jac. 1, c. 16, to which our statute fixing a limitation to this action of ejectment answers, provides merely that the entry must be made within twenty years after the title accrued ; and the lease here not having expired till 1816, the twenty-five years which our construction of the revised statutes makes necessary to a bar where the old statute began to run prior to 1830, had not elapsed when the plaintiffs’ right of entry accrued. The right of possession was outstanding in virtue of the lease, and, had ejectment been brought by the heirs of Nicholas Failing, that, per se, would have constituted a bar,

The proposition that rent is not at all essential to the existence of a leasehold estate is entirely obvious, and needs no authority for its support. That a lease like the present although the rent be presumptively paid or barred by the statute of limitations, may still be available in answer to a defence of adverse possession, seems to have been held, at least assumed, in Orrell v. Maddox, (Runn. on Eject. 458, Jippend. 1.) In 2 Hilliard’s Jlbridgm. p. 191, on the strength of the case cited, and several others, the following remark is made : “ Nor, in the case of a lease, is a reversioner &c. bringing ejectment bound to show in support of his title that he has received any rent. It is unnecessary to prove a title to the rent; a title to the possession is sufficient.” If, as some cases hold, a rent charged on land by a lease in perpetuity, may after a lapse of time be presumed to have been released, then the whole title is of course out of the lessor. Yet the lease exists, and forms the very title under which the lessee claims So of any lease of a particular estate —a demise for life or years—the estate demised-may be claimed free of rent, and it seems to me this is the only consequence, If the title of the ancestor be thrown into doubt by the proof, the non-receipt of rent may come in as a circumstance against it, to be rebutted by other proofj but the case at bar is the common one of a seisin in the ancestor and a descent to the plaintiffs, which I see nothing to overcome except the adverse possession. That is answered by the lease; and I think so conclusively that the learned judge was authorized, as he did, to direct a verdict for the plaintiff.

Some other points were made on the argument by the defendant’s counsel, all of which have, I think, been held against Mm in cases heretofore decided by this court.

My opinion is, that the motion for a new trial should be denied.

New trial denied.  