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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.

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or keeping a house of ill fame does not avoid the original lease
but only the sublease.1 Nor is a release by the subtenant to the
lessor a bar to a claim for renewal of the lease by the lessee
under covenants in the original lease.2

If the sublessee before the original lessee's lease becomes the
owner in fee, he cannot recover rent from such lessee.3

An underletting is not a violation of the covenant not to as-
sign.4
Nor is an assignment a violation of a covenant not to
underlet.5

It is no answer to a breach of a covenant not to underlet that
the lessor had waived another and distinct breach of such cove-
nant in the same lease.6

A provision in a lease against subletting the demised property
without the consent of the lessor does not apply to a mere busi-
ness firm of the lessee incident to the admission of a new part-
ner or the withdrawal of an old one.7

XXII. TERMINATION AND FORFEITURE (See LANDLORD AND
TENANT). A termination of the original lease does not always
terminate the sublease.8

Y.) 154; Fulton v. Stuart, 2 Ohio 215.
1. Healy v. Trant, 15 Gray (Mass.)
312.

2. Piggott v. Mason, 1 Paige (N. Y.)

412.

3. Liebschutz v. Moore, 70 Ind. 142.
Where a lessee by a series of con-
veyances becomes owner of the rever-
sion the rent passes as incident to the
reversion and is extinguished when the
lessee becomes the owner of such rever-
sion. York v. Jones, 2 N. H. 454.

But where a person grants his whole
estate, reserving rent, he has no rever-
sion to which the rent can be incident.
M'Murphy v. Minot, 4 N. H. 251.

4. Bockover v. Rost, 25 N. J. L. (1
Dutch.) 285.

5. Lynde v. Hough, 27 Barb. (N.
Y.) 415; 25 N. J. L. (1 Dutch.) 291;
Field v. Mills, 33 N. J. D. (4 Vr.) 254.
6. Seaver v. Coburn, ΙΟ Cush.
(Mass.) 324.

7. Roosevelt v. Hopkins, 33 N. Y. 81.
A covenant in a lease for life or for
years that the lease is to be void if the
lessee assigns is valid, but under such
condition a lessee may associate others

with himself in the enjoyment of the
term or may make a sublease.

8. Where a tenant holds premises
under a lease and sublets a portion of
the premises to a third person, there
being no restriction in the lease against
subletting, and, subsequently, without
the knowledge or assent of the subten-
ant, surrenders his term to the then
owners of the premises, such surrender
terminates the original lease and the
term created thereby as between the
parties to the original lease, but the
interest and term of the subtenant con-
tinues the same as if no surrender had
been made. The original landlord
becomes the immediate landlord of the
subtenant, with only such rights as the
original lessee would have had to the
possession, of the premises before the
expiration of the term. Eten v. Luys-
ter, 60 N. Y. 252.

A Lease Is Personal Property.-A lease
for a term of years is personal property,
and the vendor of such property has no
general lien for unpaid purchase money
after he has parted with the possession.
Cade v. Brownlee, 15 Ind. 369.
1038

INDEX.

Judge, 2

Adjournment of court, 14.
Appeals, II

Attendance at trial, II
Bills of exception, II
Chambers, powers at, 15
Commission of judge, 17
Decisions, review of, 10
De facto judges, 23
Definition, 2
Disqualification, 40
Duties, 3

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-
ters of, II

Property under court's control, 11
Rights in relation to office, 17
Special judges, 24

Substitution, 24
Tenure of office, 18

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

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Judicial notice-Continued.

Foreign judgments, 152
Foreign laws, 163
Generally, 151

Geographical facts, 169

Governor, proclamations of, 153
Historical facts, 174
Judicial proceedings, 182
Law of nations, 162
Laws of congress, 153
Maritime jurisdiction, 162
Municipal ordinances, 168
National flag, 152

Nature, usual course of, 195

Officers, selection of, 179

Official certificates and seals, 181

President's proclamation, 153
Public institutions, 161

Public officers, 152

Seal, 152, 181

Selection of officers, 179

Signatures, official, 18i
Statutes, 154

Statutes, private and special, 167

Uses and customs, 165

Judicial sales, 208

Adjournment of sale, 217
Bona fide purchasers, 223
Cash, sale for, 217
Confirmation, 219

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
Re-sale, 235

Return-day, sale after, 218
Setting aside, 235

Title acquired, 225

Trespassers, 222

Trespassers, liability of, 233
Trespassers, rights of, 229
Who may make, 209
Who may purchase, 222
Who may redeem, 240

Jurisdiction, 244

Acting without, 311

Concurrent, 292

Cor.sent, acquired by, 299

Constitutional limitations, 252

Courts of general and limited juris-

diction, 265

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Jurisdiction-Continued.
Jurisdiction construed, 314
Presumptions as to, 270
Special phrases construed, 314
Superio courts, 265
Taken away, 303

Value, determined by, 283
Various kinds of, 251

Jury and jury trial, 318
Adjournment, 366
Appeal, 380
Argument, 371
Books and papers, 376
Challenger, 366
Challenges, 343

Challenges, trial of, 356
Common jury, 320

Communications, 373
Continuance, 366

Coroner's jury, 320

Courts, discretion of, 359

Custody and conduct, 371
Definition, 319

Deliberation, 371

Discharge of jury before verdict, 364.
Error, 380

Evidence, 366

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