
    Abercrombie v. Redpath.
    Where, in a suit for work and labor in clearing a tract of land, to which the defendant pleaded a set-off for the rent of land, on which issue was taken, and on the trial the defendant offered to prove that plaintiff rented the land described in defendant’s set-off, of one Detriek; that after plaintiff had so rented, defendant had purchased the land of Detrick, but that he did not make such purchase, until Detrick had consulted plaintiff, and plaintiff agreed with Detrick, that he would take and accept defendant as his landlord, in the place and stead of Detrick, to which testimony the plaintiff objected, which objection was sustained by the court, and the testimony rejected; Seld, that the court erred in rejecting the testimony.
    If the rent accrued and became due after the purchase of the land by the defendant, in the absence of an agreement otherwise between the vendor and vendee, then,the plaintiff became the lessee of the defendant, and was liable to him for the rent, without any new agreement or lease.
    If there was no agreement between the vendor and the vendee, in relation to the rent, the power of the vendor over the premises would be gone, by the sale, and the vendee become possessed of all his rights and privileges, as to the rent.
    There was between the lessor and the lessee, a privity both of estate and contract.
    As between the assignee of the testator, by virtue of the purchase, and the tenant, there was at least a privity of estate, if not of contract.
    In the' absence of any agreement, the purchaser of the land would have a right to sue for the rent, at common law, by virtue of such privity.
    If, however, there was not only this privity of estate, but also an agreement, legal in its character, then the case would be still stronger, being a right of action founded both on the privity of estate, and resulting from express contract.
    If the right of the vendor to control the property is gone, and the vendee becomes entitled to the incidents as well as the reversion, he is, in fact, the real party in interest, and as such, under the Code, would be the proper person to prosecute for the rent; but in recognizing such right in the vendee, we are not to be understood as denying to the lessee any rights that may have been acquired by him before the sale, or before- notice thereof.
    whether the lessee had an estate at will, or any other leasehold interest, if the rent accrued and. became due after the purchase, the vendee had a right to recover for the same in his own name.
    If the lessee had an estate at will, without stipulation as to the amount of rent, then the lessor could recover for the use and occupation of the premises after his purchase.
    If the lessee had an estate for years, and a stipulated rent was reserved, then the rent passed with the land, as an incident to the reversion, in the absence of agreement otherwise, between the vendor and vendee of. the land; and the vendee could recover from the lessee for such rent becoming due subsequent to his purchase.
    It is not necessary for all the parties to an agreement to be present) and assent to it, at the samo time.
    
      Appeal from the Boone District Court
    
    Abbrorombie sited Redpatb before a justice of the peace, claiming for work and labor in clearing a tract of land. Tbe defendant pleaded a set-off to tbe amount of eighty dollars, for tbe rent of land. To this tbe plaintiff replied, denying that be rented land of defendant, or that be owed bim any sum therefor. Tbe cause was appealed to tbe District Court, and,, on tbe trial, tbe defendant proved tbat plaintiff rented tbe land in defendant’s set-off mentioned, of one De-trick ; tbat after plaintiff bad so rented, tbe defendant purchased tbe same of Detrick, but tbat be did not make such purchase until Detrick bad consulted plaintiff, and plaintiff agreed with said Detrick, tbat be would take and accept tbe defendant as bis landlord, in tbe place and stead of said De-trick. This testimony was objected to by tbe plaintiff, for the reason tbat any arrangement by said Detrick and defendant, in tbe absence of the plaintiff, was not binding in law upon said plaintiff. ' Tbe court sustained tbe objection, and ruled tbat, before said contract would be legally binding, tbe parties to tbe suit should be present and make tbe same. Tbe defendant excepted to this decision, and judgment was entered for the plaintiff for tbe sum claimed. Tbe defendant appeals, and assigns for error tbe rejection of tbe testimony offered, and tbe ruling of tbe court thereon.
    
      J. B. Jeweti, for appellant.
    
      Bates & Finch, for appellee.
   Wright, C. J.

In tbe cpnsideration of this case, it is proper to first give a construction to tbe language used in the bill of exceptions. If tbe rent was due before tbe assignment of tbe reversion to tbe defendant by tbe plaintiff’s lessor; or, in other words, before the purchase of the lessor’s title, independent of any promise by the lessee to pay the rent so due to the purchaser, it would stand on, and be governed by, different rules, than if the rent accrued and became due afterwards. We think the fair construction of the language used, is, that the rent became due after the purchase. It was found that plaintiff agreed to accept the defendant as his landlord, in the place of Detrick. It appears that Detrick did not, and would not, make such sale, until he consulted the plaintiff, his tenant. In another part of the bill of exceptions, this agreement between the vendor and plaintiff is spoken of as an attornment, and the court held that defendant must have been present at the time of making such arrangement, before it would be legally binding. Hence, we think it clear that the plaintiff was still "in -possession as tenant, if indeed his possession had commenced at the time of the sale; that the rent had not accrued and become due, and especially so, as the court below does not appear to have rejected the testimony upon any such ground as, that the covenant of the lessee had been broken before the purchase, or that the rent was before that time due, but solely upon the ground that the purchaser was not present at the time of the agreement between the vendor and the plaintiff. So regarding this case, independent of any agreement, what were the rights of the purchaser as against the lessee, or what were their mutual rights, duties and liabilities ?

The reasonable presumption, perhaps, is, that this plaintiff was in possession of the premises as a tenant at willi There is no claim-that he held for years, or any greater estate; and being there with the consent of the landlord, our law provides, that in the absence of any contrary showing, it will be regarded as a tenancy at will. Code, § 1208. But, whether so or not, if this rent accrued and became due after the purchase by the defendant, in the absence of any agreement otherwise, between the vendor and vendee, then plaintiff became the lessee of the defendant, and was liable to him for the rent, without any new agreement ,or lease. The powers of tbe vendor over tbe premises, in sucb case, would be gone, and tbe vendee becomes possessed of all bis rights and privileges, as to tbe rent. There was between tbe lessor and tbe lessee a privity, both of estate and contract. As between tbe assignee of tbe lessor, by virtue of tbe purchase, and tbe tenant, there was at least a privity of estate, if not of contract. In tbe absence of tbe agreement spoken of, tbe purchaser would have a right to sue, by virtue of sucb privity, as we regard, at common law. If, however, there was not only this privity of estate, but also an agreement, legal in its character, then tbe case would be still stronger, being a right of action founded both on tbe privity of estate, and resulting from express contract.

Without referring to authorities in'detail on tbe subject of defendant’s right to recover for tbe rent, independent of a new lease or agreement, it may be-proper to-advert to a few that recognize tbe doctrine. In tbe case of Howland v. Coffin, 12 Pick. 126, this point was expressly ruled. There, one B. leased to R. for a term of years; R. sold to Coffin all bis interest, and B. sold to Howland all bis right in and to tbe premises. In a suit by Howland to recover tbe rent in bis own name, it was held, that by the assignment or purchase of tbe reversion, tbe vendee became entitled to all tbe rights of tbe vendor or lessor. Tbe rent was held to be an incident to tbe reversion, and tbe right of action perfect in tbe purchaser of such reversion. So in tbe case of Willard v. Tillman, 2 Hill, 274, suit was brought by tbe assignee of the lease, who, however, did not purchase tbe reversion. In sucb case, a doubt was expressed by BroNSOít, J., in delivering the opinion, whether there was sucb privity of contract, let alone privity of estate, between the assignee and lessee, as would take it out of tbe general rule of tbe common law, which declared that cboses in action are not assignable. But tbe right of sucb assignee, even in sucb a case, to sue in his own name, having been before settled by that court, in tbe case of Demarest v. Willard, 8 Cowen, 206, it was so recognized in this case in 2 Hill, 274. In case the reversion passed, however, it is stated, in express words, that tbe vendee could maintain an action in bis 'own name against tbe lessee, upon any covenant running witb tbe land, whether in law or in deed. Tbe same doctrine is-recognized in Story on Contracts, §§ 981 d and 951 b; Montague v. Gay, 17 Mass. 439.

And we further suggest, that these views, and tbe right -of tbe vendee to sue in bis own name, independent of any express agreement between him and tbe lessee, may well be maintained by tbe spirit and letter of our Code, which provides, that civil actions must be prosecuted in tbe name of tbe real party in interest. If tbe right of tbe vendor to ■control tbe property is gone, and tbe vendee becomes entitled to tbe incidents, as well as tbe reversion, be is, in fact, 'the real party in interest, and as such would be tbe proper person to prosecute for tbe rent. In recognizing such right, however, in tbe vendee, we, of course, are not understood ■as denying to tbe lessee, any rights that may have grown up to him before tbe sale or notice thereof.

If tbe above views are correct, it follows, that, whether this was as estate at will, or any other leasehold interest, if the rent accrued and became due after tbe purchase, tbe ven-dee bad a right to recover for tbe -same in bis own name. If at will, without stipulation as to tbe amount of tbe rent, 'then be could recover for tbe use and occupation of tbe ‘premises after bis purchase. If not at will, but for years, and a stipulated rent was reserved, then it passed witb tbe land, as an incident to tbe reversion, in tbe absence of agreement otherwise, and tbe owner of tbe land could recover for Such rent subsequently becoming due. That there was no agreement otherwise in this case, is evident, from tbe fact 'that tbe record shows, that tbe vendor consented and pro•cured tbe assent of tbe lessee, to accept tbe vendee in tbe place and stead of such vendor.

But let us look at tbe case, without reference to tbe above principles, in view of .the agreement. ‘The objection to tbe recovery of tbe vendee, as, held by tbe court below, was, that tbe defendant was not present when plaintiff agreed to ■accept and receive him as bis landlord. It appears, that Detrick, the lessee, and the Tendee, are regarded as parties to this agreement or contract. Detrick, while negotiating for the sale of his land, on which there was a tenant, goes to him, informs him of such negotiation, and the tenant then agrees that he will accept the purchaser as his landlord in the place and stead of Detrick. ¥e cannot presume, that this agreement was void, testing it as between Detrick and the plaintiff. It is expressly stated, that the plaintiff agreed to do so, and the only legitimate conclusion is, that such agreement was a good and valid agreement, and not that it was void, unless it was so, or became so, because defendant was not present at the time. For it is expressly stated, that because he was not present, such agreement, though otherwise legally binding, became of no effect, and that defendant acquired no right thereunder. We do not understand such to be the rule. It is not necessary that all the parties to the agreement should be present, and all consent at the same time. There is nothing to show any dissent on the part of the defendant to this contract, on the contrary, all the circumstances would show a concurrence, and especially when, in this very proceeding, he seeks to enforce such contract, and to collect the rent thereon. It is not claimed that plaintiff was evicted from the land, or that he was in any manner disturbed in his possession. The rejection of the testimony is placed upon no such ground. This possession, use, and occupancy continued, and he had expressly agreed to recognize defendant as his landlord. It was not necessary that defendant should have expressly consented to this agreement. This assent may be presumed by his silence, and especially so, when it would be incumbent on him to dissent, if he did not agree, or when all of his acts are inconsistent with a disagreement. In this case, no act is shown indicating a dissent; on the contrary, by permitting the plaintiff to remain in possession, his concurrence in the agreement is fairly shown. By obtaining title, he had such an interest, as could well make him a party to the agreement, will import a sufficient and valid consideration, and enable him to recover on this promise or agreement. At most, it was ,proper matter for tbe consideration of tbe jury, as to whether ■this was or' was not, a mutual agreement.

Judgment reversed!  