
    COURT OF APPEALS.
    Henry T. Kiersted et al., appellants, agt. The Orange and Alexandria Railroad Company et al., respondents.
    
      Lease—when action for use and occupation does not lie—principal and agent.
    
    An action for use and occupation does not lie against a principal where there is an outstanding lease in the name of the agent.
    In such case there must he proof of an assignment of the lease in writing by the agent to the principal, or proof of a surrender of the lease by the agent and its acceptance by the landlord before he can recover.
    
      April, 1877.
    Appeal, from order of general term affirming judgment recovered on the report of a referee (For full statement of foots see case reported in 54 How., page 29).
    
      E. S. Van Winkle, for appellants.
    
      T. C. Cronim, for respondents.
   Andrews, J.

By the lease from the plaintiffs to David O. Smith, executed on the 1st day of ¡November, 1860, the latter became vested with a term in the demised premises commencing on that day and terminating May 1, 1863. The lease was signed and sealed by the plaintiffs and by Smith in bis individual capacity, and although it recited that Smith was agent of the Virginia and Tennessee route it did not purport to he executed for or in behalf of the defendants. The covenants of the lessee in the lease were his and not those of the corporations Which composed the lines of railroad for which he was agent. They were not bound by the lease. The only authority conferred upon Smith was to negotiate for the lease of an office for their business and to report any proposed arrangement to the several companies composing the route for their approval. And if he had been authorized to lease the premises for the defendants that authority was not executed. The form of the lease made him the lessee, and the covenants in a deed can only be enforced against the party who, upon the face of the instrument, is the covenantor, although it appears by extrinsic proof that he acted as the agent for another (Taft agt. Brewster, 9 Johns., 334; Stone agt. Wood, 7 Cow., 452; Grayson agt. Lewis, 7 Wend., 26; Briggs agt. Partridge, court of appeals, March, 1876).

Nor would an action for use and occupation lie against Smith to recover the rent reserved by the lease. At common law assumpsit for use and occupation could not be sustained where there was an express demise. This restriction was partially removed by the statute (11 Geo., 11, C. 19), and our statute gives this remedy to the- landlord against a tenant under a parol devise or other agreement, not by deed, to recover a reasonable satisfaction for the use of the premises, and the agreement may be used as evidence of the amount of damages to be recovered (1 Rev. St., 748, sec. 26); but when the lease is by deed the action must be upon the demise to recover the rent reserved (Comyn Land, and Tenant, 435; West agt. Cartledge, 5 Hill 488; Wood agt. Wilcox, 1 Den., 37). The lease to Smith authorized the lessors to re-enter for non-payment of rent or the failure of the lessee to perform other conditions in the lease. Until a re-entry for condition broken, or á surrender of the lease, Smith was the owner of the term -created thereby, and the only remedy which the plaintiffs had to recover the rent was by action upon the covenant against- the lessee, or, if he had assigned the lease, against his assignee. The assignee would stand in the same position as the lessee in respect- to his liability in an action for use and occupation.' This 'action is brought to recover of the defendants for the use and occupation of the premises from the 1st of May, 1861, to the 12th of February, 1862. The defendants, as has been shown, were not parties to or bound by the lease. It is not claimed that they were assignees. There was no written assignment, and the interest of Smith could only be transferred by writing (2 Rev. St., 135, sec. 6), and there is no proof even of a parol agreement for the transfer of the lease to the defendants. There is no evidence of a surrender of the- lease, or that the plaintiffs regarded the lease as surrendered. On the contrary, on the 31st of January, 1862, they notified Stewart, who was then in possession of the premises, that they should re-enter for non-payment of rent, and relet them under the provisions of the lease ; and Stewart, soon afterwards, left the premises and the plaintiffs took possession.

In the complaint in this action the plaintiffs inserted a count upon the lease, and also for use and occupation, and it having been decided that the defendants were not liable upon the lease, they abandoned this cause of action and elected to proceed solely for use and occupation. Under these circumstances, the plaintiffs cannot claim that the lease was surrendered, and there is no basis for such a contention. It is, therefore, clear that the term vested in' Smith by the lease was outstanding during the whole period for which the plaintiffs claim to recover for use and occupation in this action.

The relation of landlord and tenant created by the lease continued, and it is difficult to see how that relation could exist during the same- time, in respect to the same premises, between the plaintiffs and defendants. It is well settled that the action for use and occupation can only be sustained on the ground of a subsisting tenancy between the parties (1 T. R., 378; 13 J. R., 489; 1 Wend., 134). The entry of the defendants was not by the permission or under any arrangement with the plaintiffs. Smith occupied the premises in the business of his agency until about April 1, 1861, and then, by reason of sickness, left them in charge of Stewart, .his clerk. The defendants, soon afterwards, appointed White as their agent to take charge of the office. The rent was paid to May 1, 1861, by Smith and Stewart, the money being furnished by the defendants. , The business of the defendants in the sale of tickets was discontinued on the 20th of April, 1861; but the referee has found, and we cannot say there was no evidence to sustain the finding, that they continued to occupy the premises, by their 'agents, to February 12, 1862. He also found that they were the tenants of the plaintiffs from the time Smith left the possession in April, 1861, to the time the plaintiffs re-entered in February, 1862.

We are of opinion that there is no evidence to support this finding. The presumption, in the absence of evidence upon the subject, is that they entered under Smith, whose term was outstanding, and in whom the right of possession was vested by sub-tenants, no assignment having been made by him of the lease. The fact that they furnished the money to pay the rent which had accrued up to May 1, 1860, did not make them the tenants of the plaintiffs; and while they may be hable for the use and occupation of the premises after that time, this liability, if it exists, is to Smith, and not to the plaintiffs. There was no privity of contract or estate between the plaintiffs and defendants, and we see no ground upon which this action can he supported.

The judgment should be reversed and a new trial granted,, costs to abide the event.

All concur.  