14. Recording Assignments.-Where an assignment endorsed on a recorded lease refers to the lease for a description of the premises, and of the interest conveyed by the lease, the assignment is sufficiently recorded if its record is accompanied by a memorandum referring to the book and page where the lease is recorded.1 15. Joint Assignees.-A lessee may assign his entire interest in a lease to two or more persons by separate deeds of assignment, each of which may convey an undivided interest. In such a case the assignees are not jointly liable to the lessor for the whole rent, but only in proportion to the interest assigned to them respectively.2 16. Presumption from Possession. If a third person is found in possession, the presumption is that he holds as assignee of the lease.3 XXI. SUBLEASES-1. Definition.-Where a lessee parts with the estate granted to him, reserving any portion thereof, however small, this is called an under lease or sublease.4 2. Limitations Upon Power to Sublet.--A tenant cannot sublet longer than his present term,5 and where a lessee makes a lease for a period exceeding his whole term, it will, as to the landlord, amount to an assignment.6 the lease without the consent of the lessor, contrary to the terms of the lease, and the lessor, with knowledge of such assignment, accepts rent from assignee, and receipted to him for it, and at assignee's request made repairs, and, upon assignee's abandonment of the demised premises, bought of him the personal property used in the hotel, and credited the price thereof on rent, took possession and occupied the property for the remainder of the term; meanwhile the lessor made no demand on the original lessees for rent, and gave no notice that he intended to look to them for payment; held that these acts amounted to an acceptance of the assignee as a tenant, and a release of the original tenant, and that no recovery could be had against him for rent after the assignment. Colton v. Gorham, 72 Iowa 324. 1. Putnam v. Stewart, 97 N. Y. 411. If a lease is invalid, as against subsequent conveyances, for want of being recorded, a sublease of the same premises will also be of no validity. People v. Stiner, 45 Barb. (N. Y.) 56. 2. Babcock v. Scoville, 56 Ill. 461. 3. Ecker v. Chicago etc. R. Co., 8 Mo. App. 223. If a third person be found in possession, under circumstances which imply an assignment of the lease to him, he is not liable to the landlord on the covenants in the lease to pay rent during the occupation of the premises by virtue of his privity of estate. Glover v. Wilson, 2 Barb. (N. Y.) 264. One found in possession of premises leased to another is presumably liable for rent as assignee of the lease, but may show he is not in possession as assignee. Ebling v. Fuylein, 2 Mo. App. 252. A person other than the lessee being found in the possession of premises, the presumption is that he occupies as assignee and not as under tenant, especially if he has paid rent to the original landlord. Acker v. Witherall, 4 Hill (N. Y.) 112. 4. Bentley v. Deforest, 2 Ohio 221; Farnum v. Platt, 8 Pick. (Mass.) 339. 5. Sutherland v. Goodnow, 108 Ill. 528. 6. Stewart 7. Long Island R. Co., 102 N. Y. 601; s. c., 55 Am. Rep. 844. Right to Sublet.-Öne in possession of real estate with the owner's consent, is presumed to have the right to sublet. Goldsmith v. Wilson, 68 Iowa 685. Any tenant, except at will, may underlet for so long as his interest continues, if he is not prohibited by his lease. Jackson v. Harrison, 17 Johns. 66. An instrument under which a lessee If there is nothing in the lease restricting the tenant from subletting, he may do so for purposes not inconsistent with the terms of his own lease.1 But a subletting in violation of the terms of the original lease gives the lessor the right to have the lease dissolved.2 The sublessee succeeds to original tenant's rights and no more,3 and the duties and obligations of the original lessee to his landlord devolves upon the subtenant and upon everyone in succession to whom the possession is transferred. And if a subtenant is accepted by the landlord as his tenant, the lessee in the original lease is not liable for rent subsequent to such acceptance.5 There is not such a privity of estate between landlord and subtenant as will entitle the former to distrain upon property of the latter, or give. the landlord a right of action against the lessee for rent. 6 Under the statutes of some of the States, an illegal use of the premises by the under tenant for the sale of intoxicating liquors transfers the estate demised to him, but reserving an increased rent, and with a covenant for the delivery of possession to himself, is a sublease and not an assignment. Collamer v. Kelley, 12 Iowa 319; S. P. Martin v. O'Conner, 43 Barb. (N. Y.) 514. Where a lessee transfers the term, reserving a rent to himself, such transfer is an underlease as between the parties thereto, so far as to give the lessee an action of debt, for rent against the under lessee or his assignees. Adams v. Beach, 1 Phila. (Pa.) 99. A conveyance by a lessee to a third person for a portion of the term constitutes such person under tenant, and not an assignee of the lease, so that improvements made by him will be considered as made by the tenant. made by the tenant. Wheeler v. Hill, 16 Me. 329; S. P. Bedford v. Terhune, 30 N. Y. 453. A sublease differs from an assignment in the essential fact that some reversionary interest, no matter how inconsiderable, is retained by the original tenant. Constantine v. Wake, I Sweeney (N. Y.) 239; Fulton v. Stuart, 2 Ohio 216; Bedford v. Terhune, 30 N. Y. (3 Tiff.) 453; Smiley v. Van Winkle, 6 Cal. 605. Where a lessee executes an instrument conveying the whole of his unexpired term, but reserving rent at a different rate and time of payment from the original lease, and a right to re-entry on nonpayment and on breach of other conditions, also providing for a surrender of the premises to him on the expiration of the term, the instrument is a sublease, not an assignment. Collins v. Hasbrouck, 56 N. Y. 157. An under lease vests only a partial estate in the second lessee, whereas an assignment transfers the whole interest of the first lessee to the assignee. Constantine v. Wahe, I Sweeney (N. Y.) 139. Where a lessee of a lot of land makes a lease for the remainder of his term, of a building standing on a portion of the leasehold premises, and by the terms of the lease grants easements appurtenant to the building of light and air, and of passing and repassing other portions of the leasehold premises in common with him and those claiming under him, such lease is an under lease and not an assignment of his whole term in a portion of the leasehold premises. McNeil v. Kendall, 128 Mass. or keeping a house of ill fame does not avoid the original lease If the sublessee before the original lessee's lease becomes the An underletting is not a violation of the covenant not to as- It is no answer to a breach of a covenant not to underlet that A provision in a lease against subletting the demised property XXII. TERMINATION AND FORFEITURE (See LANDLORD AND Y.) 154; Fulton v. Stuart, 2 Ohio 215. 2. Piggott v. Mason, 1 Paige (N. Y.) 412. 3. Liebschutz v. Moore, 70 Ind. 142. But where a person grants his whole 4. Bockover v. Rost, 25 N. J. L. (1 5. Lynde v. Hough, 27 Barb. (N. 7. Roosevelt v. Hopkins, 33 N. Y. 81. with himself in the enjoyment of the 8. Where a tenant holds premises A Lease Is Personal Property.-A lease INDEX. Judge, 2 Adjournment of court, 14. Attendance at trial, II Fraud and corruption, 39 General powers, 23 Judicial acts, 5 Liability for acts and opinions, 32 Ministerial acts, 5 New trials, 13 Nonjudicial duties, 5 Opinions and orders, 13 Personal nature of duties, 3 Practice, powers and duties in mat- Property under court's control, 11 Substitution, 24 Territorial limitation of powers, 9 Vacancies in office, 20 Vacation, powers during, 14 Void and voidable acts, 48 Witness, judge as, 31 Judgments, 58 Actions in several, 61 Actions on, 1497 Agents, 93 Arrest of, 1476 Judicial notice-Continued. Foreign judgments, 152 Geographical facts, 169 Governor, proclamations of, 153 Nature, usual course of, 195 Officers, selection of, 179 Official certificates and seals, 181 President's proclamation, 153 Public officers, 152 Seal, 152, 181 Selection of officers, 179 Signatures, official, 18i Statutes, private and special, 167 Uses and customs, 165 Judicial sales, 208 Adjournment of sale, 217 Deed, 219 Definition and nature, 208 Manner of sales, 209 Notice, 210 Parcels, sale in, 214 Place of sale, 213 Publicity of sale, 214 Redemption, 239 Redemption, effect of. 243 Redemption, time and manner of, 241 Return-day, sale after, 218 Title acquired, 225 Trespassers, 222 Trespassers, liability of, 233 Jurisdiction, 244 Acting without, 311 Concurrent, 292 Cor.sent, acquired by, 299 Constitutional limitations, 252 Courts of general and limited juris- diction, 265 Jurisdiction-Continued. Value, determined by, 283 Jury and jury trial, 318 Challenges, trial of, 356 Communications, 373 Coroner's jury, 320 Courts, discretion of, 359 Custody and conduct, 371 Deliberation, 371 Discharge of jury before verdict, 364. Evidence, 366 |