
    ENGLISH vs. KEY.
    [ACTION ON PROMISSORY NOTE, BY ASSIGNEE AGAINST MAKER.]
    1. Estoppel against tenant from, denying landlord's title. — The tenant is estopped, in any proceeding hy his landlord for the recovery of rent or possession, from denying- the title of the latter; yet he may show that he has heen evicted under a paramount title, or that his landlord’s title has heen extinguished, or has passed from him, either hy his own act, or hy operation of law.
    2. Apportionment of rent; attornment, and. emotion. — In the absence of an express stipulation to the contrary, there is no apportionment of rent between the lessor and his assignee; and the same principle applies, where the land is sold, during the term, under execution against the lessor; nor is it necessary, in such case, to perfect the purchaser’s right to the entire rent alterwards falling due, and discharge the tenant from liability therefor to the lessor, that the tenant should attorn to the purchaser, or he evicted hy him.
    Appeal from tbe Circuit Court of Monroe.
    Tried before tbe Hon. John K. Henry.
    This action was brought by K>. M. Key, against W. W. English; was founded on tbe defendant’s promissory note for $300, dated tbe 17th April, 1858, payable on tbe 1st January, 1859, to B. H. Jones or bearer, and assigned by said Jones to tbe plaintiff; and was commenced on tbe 21st June, 1860. Tbe defendant pleaded tbe general issue, and failure of consideration; and issue was joined on those pleas. On tbe trial, as tbe .bill of exceptions states, “tbe plaintiff read in evidence tbe note described in tbe complaint, and tbe defendant then offered in evidence tbe following statement of facts: One White recovered a judgment against Key on tbe 3d April, 1858. On tbe 9th April, 1858, an execution on said judgment was issued, and placed in tbe bands of tbe sheriff of Monroe. On tbe 15th April, 1858, Key rented tbe land to English; and on tbe 17th April, 1858, English gave tbe note sued on, for tbe rent of tbe land for tbe balance of the year. On tbe 5th July, 1858, tbe sheriff sold tbe land to one Bender, who claimed an immediate right of possession under bis purchase,' and agreed to let English remain in possession, as bis tenant, for tbe remainder of tbe year; to which Engbsb voluntarily assented. ■ English accounted to, and settled with Bender, for tbe rent after tbe 5th July. Tbe land was not redeemed from Bender by Key until after tbe 1st January, 1859. Tbe plaintiff admitted these facts to be true, but objected to tbe evidence as irrelevant and incompetent. Tbe court sustained tbe objection, and excluded tbe evidence; to which tbe defendant excepted,” and which be now assigns as error.
    ToRREY & Leslie, for appellant.
    Tbe contract between Engbsb and Key was entire; and on tbe sale of tbe land under execution against tbe latter, tbe rent afterwards falling due passed to tbe purchaser at tbe sale. Although a tenant cannot dispute tbe title of bis landlord, be may nevertheless show that it has been extinguished, or has passed from him by operation of law; and a sale under execution is one of the cases in which that defense has been most frequently allowed. In support of these positions, see Randolph v. Garitón, 8 Ala. 614; Pope v. Harkins, 16 Ala. 321; Smith v. Mundy, 18 Ala. 185; Hvertson v. Sawyer, 2 Wendell, 507; Lawrence v. Miller, 1 Sandf. 516; Wolf v. Johnson, 30 Miss. 513; Jackson v. Rowlcmd, 6 Wendell, 666; Sampson v. Grimes, 7 Blacbf. 176; Peck v. Northrup, 
      17 Conn. 217; Horner v. Leeds, 1 Dutcher, 106; Burden v. Thayer, 3 Metcalf, 76; Morse v. Goddard, 13 Metcalf, 177; Oharnely v. Hansbury, 13 Benn. St. 16; George v. Put-ney, 4 Cushing, 351; Byers v. Farwell, 9 Barbour, 615; Wilton v. Dumn, 7 Eng. L. & Eq. 406 ; Hoiuell v. Ashmore, 2 N. J. 261; Tilghman v. Little, 13 Illinois, 239 ; Martin v. Martin, 7 Mcl. 368; Elliott v. Smith, 23 Penn. St. 131; Buffum v. Deane, 4 Gray, 385 ; Swann v. Wilson, 1 A. K. Mar. 99 : Devatch v. Newsom, 3 Ham. 57 ; Montague v. Gay, 17 Mass. 439; York v. Jones, 2 N. H. 454; Gregory v. Grabb, 2 B. Monroe, 234; Willard v. Tillman, 2 Hill, 274; Wilson v. Delaplaine, 3 Harring. 499; Snider v. Bihy, 1 Sp.eers, 272 ; Smith’s Landlord and Tenant, 234, n. 17; Washburn on Beal Property, yol. 1, (top) 359-60.
    O. S. Jewett, contra.
    
    1. If there was any failure of consideration, it was partial only, and was not, therefore, a good defense under the plea. — Greenleafv. Ooolc, 2 Wheaton, 13 ;. Tallmadge v. Wallis, 25 Wendell, 107.
    2. The voluntary surrender of the possession to the purchaser at the execution sale, was not equivalent to an eviction. — 8 Sm. & Mar. 727, 744. No eviction being shown, the sale of the land under execution was no defense to an action on the note given for the rent. — Heath v. Newman, 11 Sm. & Mar. 205.
    3. Having enjoyed the premises, without interruption, for the entire period of his lease, the defendant was bound to pay the rent. — -Minor, 352 ; 1 Stew. 490 ; 5 Stew. & P. 103, 431; 8 Porter, 500 ; 1 John. Ch. 213 ; 5 Cowen, 195; 17 Wendell, 188 ; 21 ib. 134; 25 ib. 116.
   R. W. WALKER, J.

The familiar rule, which prohibits the tenant from denying the title of the landlord, in any proceeding instituted by the latter, for the recovery of rent, or of possession, must be taken with the qualification (now quite as well established as the principal rule), that the tenant may show that he has been, bona fide, evicted under a paramount title, or that, since the inception of the lease, the title of the landlord has been extinguished, or has passed from him, either by his own act, or by operation of la w. — Randolph v. Carlton, 8 Ala. 614; Pope v. Harkins, 16 Ala. 323 ; Smith v. Mundy, 18 Ala. 185 ; Wolf v. Johnson, 30 Miss. 513; Ryers v. Farwell, 9 Barb. 615 ; 1 Washb. Real. Prop. 615.

Except wkere it is payable in advance, no claim for rent arises, until tke lessee kas enjoyed tke premises tke wkole time for wkick tke payment of a rent is stipulated to be made. Hence it follows, tkat if tke tenant be evicted by a paramount title, pending tke lease, and before tke rent falls due, ke will not be liable to kis landlord for rent for tke unexpired term during wkick ke may kave enjoyed tke land. In conformity to tke principle tkat an entire contract cannot be apportioned, tkere is, in suck cases, no apportionment of rent in reference to tke lengtk of time of occupation. Tke enjoyment of tke estate for tke stipulated term is tke consideration for tke covenant to pay rent; and on tke plain ground of equity, tkat tke obligation to pay ceases wken tke consideration for it ceases, tke eviction of tke lessee by a paramount title works kis disckarge from tke payment of any rent tkereafter falling due. — Clum’s case, 10 Coke’s R. 128; Salmon v. Smith, 1 Wm. Saunders’ R. 205 (n); Wood v. Partridge, 11 Mass. 488 ; Boardman v. Osborn, 23 Pick. 295; Morse v. Goddard, 13 Metc. 177; George v. Putney, 4 Cush. 351; Russell v. Fabyan, 7 Poster, (N. H.) 543; Martin v. Martin, 7 Md. 375 ; Giles v. Comstock, 4 Comstock, 275 ; Smith’s Landlord and Tenant, 134; 3 Kent, 464; 1 Washb. R. P. 97, 337, 341; Greenl. Cruise, title 28, ch. 3, §§ 1 et seq.

By tke ancient law, no grant of a reversion could be made without tke consent of tke tenant, expressed by kis attornment to kis new landlord. — Co. Litt. 309 a, n. (1). In early times, tke relation of lord and tenant was of a muck more personal nature than it is at present; and it was thought reasonable tkat a tenant should not kave a new landlord imposed upon him without kis consent. Tke tenant, therefore, was able to prevent kis lord from making a conveyance to any person, whom ke did not choose to accept as landlord; for ke could refuse to attorn to tke purchaser, and without attornment tke grant was invalid. Tke only means by wkick tke landlord could convey kis reversion without bis tenant’s concurrence, was by tbe expensive process of a fine levied in tbe court of common pleas. In process of time, wben tbe rent jjpid by tbe tenant became tbe only service, of any benefit, received from bim by tbe landlord, tbe doctrine was found inconvenient; and tbe necessity of attornment to tbe validity of tbe grant of a reversion was accordingly abolished by a statute passed in tbe reign of Queen Anne, (4 and 5 Anne, cb. 16, § 9,) wbicb also provided, tbat no tenant shall be prejudiced by payment of bis rent to tbe grantor before notice of tbe grant. Wms. Eeal Prop. 203. Both of these provisions form part of tbe statute law of Alabama. — Code, § 1298; also, § 2215.

Bent is incident to tbe reversion ; and tbe lessor’s transfer of tbe reversion, tbougb without tbe tenant’s attornment to tbe assignee, or any express mention of the rent, carries with it tbe rent falling due thereafter. Tbe bolder of tbe reversion may, indeed, sever the rent torn tbe reversion; but, unless it is specially reserved, tbe rent follows tbe reversion as a part of tbe realty. With tbe exception of cases .arising under tbe statute of 11 George H, (cb. 19, § 15,) wbicb is confined to tbe case of a life-tenant lessor dying pending tbe lease, and tbe principle of wbicb has been re-enacted in some of tbe States and adopted by tbe courts in others, (1 Washfi. B. P. 98 ; 3 Kent, 471,) rent cannot be apportioned as to time. There is, therefore, no apportionment of tbe rent between tbe lessor and bis as-signee ; but whoever owns tbe reversion at tbe time tbe rent falls due, is entitled to tbe entire sum then due; and a lessor who has parted with tbe reversion, without specially reserving tbe ' rent, cannot maintain an action against bis lessee for rent falling due thereafter. — Burden v. Thayer, 3 Metc. 76; Van Wicklen v. Paulsen, 14 Barb. 654; Demarest v. Willard, 8 Cowen, 206; Martin v. Martin, 7 Md. 368; Peck v. Northrop, 17 Conn. 217; Breeding v. Taylor, 13 B. Monr. 477; Sampson v. Grimes, 7 Blackf. 175; Stout v. Kean, 3 Harring. 82; Birch v. Wright, 1 Term R. 378; Flinn v. Calow, 1 M. & G. 589; 1 Washb. R. P. 337-8-9. Tbe defense thus arising in favor of tbe lessee, against- an action by tbe lessor for rent falling due after an assignment of tbe reversion, does not depend upon eviction or ouster bj tbe assignee, but is complete without it. By tbe transfer of tbe reversion, and ^^the rent afterwards falling due as incident thereto, tbe lessor becomes bound to pay such rent to tbe assignee, and is discharged from Lability therefor to tbe lessor. — George v. Putney, 4 Cush. 351 (356) ; Farley v. Thompson, 15 Mass. 18 ; authorities supra.

Tbe same principles apply, and tbe same results follow, in tbe case of a transfer of tbe reversion by judicial sale. In Pope v. Harkins, (16 Ala. 324,) Dargan, C. J., said: “ If tbe premises are sold by execution againsb tbe landlord, tbe tenant may show this in bar of tbe landlord’s action for rent; for tbe purchaser occupies tbe same relation to tbe landlord that a grantee by deed would.” And tbe authorities are clear to tbe point, that a purchaser of tbe lessor’s estate at execution sale is entitled to the rent falling due after tbe execution of tbe sheriff’s deed. — Randolph v. Carleton, 8 Ala.; Bank of Pa. v. Wise, 3 Watts, 394; Martin v. Martin, 7 Md. 368; Wilson v. Delaplaine, 3 Harring. 499; Moure v. Turpin, 1 Speers, 32; Montague v. Gay, 17 Mass. 439 ; George v. Putney, 4 Cush. 351 (356); Buffum v. Deane, 4 Gray, 485; 1 Washb. Real Prop. 333.

It is obvious from has been said, that tbe court erred in rejecting tbe evidence.

Judgment reversed, and causé remanded.  