
    HENRY STOUT vs. THOMAS KEAN.
    Rent is incident to the reversion; and if, during the term, the lessor grant the reversion to another, the rent follows, and lie cannot recover it, even though the tenant promise payment.
    The delivery of a deed acknowledged and recorded, and which hears the usual attestation, cannot be contradicted without calling, or accounting for, the attesting witnesses.
    Testatum capias case. This was an action of use and occupation for the rent of a farm. The defence was payment., and a discount for repairs and ditching.
    The defendant’s counsel, admitted that he must prove directions from the landlord to cut the ditches and. make the repairs, otherwise the tenant would not be entitled to deduct such repairs from the rent. This he failed to do.
    The plaintiff proved a lease by parol from March 1836, to March 1837, at a rent of $200: a settlement between the tenant and his agent in June,.1837, and an admission by the tenant that a balance of $53 was due, if he got no allowance for the ditching.
    The defendant’s counsel having given in evidence the record of a deed from Henry Stout to Isaac Short for this farm, conveying the premises in fee simple, without any reservation of rent, dated and acknowledged the 14th February, 1837, in Baltimore and recorded here, and a bond for the purchase money dated 2d March, 1837, moved a nonsuit on the ground that by the sale the whole right to the rent passed to the vendee, Short, and Stout could not by any form of action recover any part of it. Having parted with the reversion, and all his interest in the thing out of which the rent issued, he had no right to recover the rent by distress or otherwise.
    
      Mr. Bates, for plaintiff,
    argued that on the proof that the deed was executed and acknowledged in Baltimore to a person here; and proof of a bond for the purchase money, dated 2d March, 1837, the jury might find that the deed, though dated 14th February, 1837, and having the formal attestation of “signed, sealed and delivered,” was not in point of fact delivered until 2d March, when the bond was given for the consideration money. He argued that, although in a distress or action of debt for the rent as such, the parting with the reversion before the rent fell due, would deprive the party of his remedy; yet that in assumpsit for use and occupation, the landlord might recover the rent, though he had parted with the reversion, especially on proof of an assumption to pay, 'on payment of part; the narr. containing the usual money counts.
    Frame., contra.
    
      
      Bates, for plaintiff.
    
      Frame, for defendant.
   The Court.

The rent is a legal incident of the reversion, and passes with it. This rent fell due on 2d March, 1837, and the plaintiff assigned the reversion on the 14th February previous, by deed of bargain and sale to Isaac Short, without reservation. The effect of this deed was to transfer the rent absolutely to Short. But it is attempted to be shown that this deed, though dated on the 14th February, was not in point of fact delivered until the 2d March, 1837, and the evidence offered to prove this is, that the deed was executed in Baltimore, to a person residing here, and the bond for the purchase money is dated on the 2d March. This evidence is not even admissible as proof of the delivery. The attesting witnesses must be called, or shown tó be dead, or out of the jurisdiction, before any other proof can be offered of the formal execution of the deed. Until such testimony is given, the attestation on the face of the deed must be taken to be true. The question then is whether any promise of the tenant after the assignment of the reversion, can give a right of action to the assignor. Such a promise would be without consideration and void; or it would subject the tenant to two actions, and compel him to pay the rent twice.

Plaintiff nonsuited.  