LANDLORD AND TENANT. 1. In an action on bond given for rent, the lessee cannot question lessors title. Perkins v. Governor, A. R. 352. 2. When a lessee purchases the fee and obtains a conveyance which is silent as to the rent, it operates as an extinguishment of the rent for the remainder of the time: and the case is the same when the vendor had himself purchased of the lessor, who was the original owner of the fee, and with it a note given by the lessee, for rent, and afterwards sold the fee to the lessee. Martin, Bradley & Co. v. Searcy, 3 S. 50. 3. An action of assumpsit for rent will not lie at common law, except on an express promise made at the time of the demise. Bell v. Ellis' heirs, 1 S. & P. 294. 4. The act of 1812, in relation to the action of assumpsit for rent, applies only to cases of a demise, and where there exists an agreement creating the relation of landlord and tenant. Ibid. 5. So when A has the possession of land under an agreement of sale from B, who had no legal title to dispose of it, this action cannot be maintained by the owners of land to recover of A rent for its use and occupation. 1bid. 6. A purchases land of the United States, makes a partial payment, and leases to B a portion, to be rented as long as certain conditions are complied with. Under the circumstances, if C purchase from A, and get a patent from the United States as assignee of it, with a knowledge of B's lien, the land will be held subject to the lease, as though the title had still remained in A. Dearing v. Hall, 2 S. & P. 243. 7. Under a parol contract for the lease of lands for 5 years, when the lessee has enjoyed the possession for one year, the lessor may recover in assumpsit for the use and occupation of the premises for that period. Hays v. Goree, 4 S. & P. 170. 8. A joint owner of lands may maintain in action for rent against one holding under a contract of sale to be ratified by another joint owner, when the said owner afterwards refuses to ratify the sale, the tenant having promised to pay reasonable rent in this contingency, and the joint owner having declined all interest in said rent, Wyatt v. Bibb, 4 S. & P. 391. 9. The occupancy by one, of the public domain, forms, so far at least as trespasses by a stranger are concerned, a tenancy at will, and not a mere tenancy from year to year. Duncan v. Polly, 5 S. & P. 82. 10. One sued for the rent of a house which he has occupied cannot dispute the title of his lessor without shewing eviction or disturbance. Hanks v. Henson & Patterson, 4 P. 509. 11. In an action by a firm for use and occupation of a house, and that the house was sold to one of the firm, but whether on account of the firm or not, was not known by the witness, but that the vendee had his account with the firm credited with the amount of the purchase money, and that the defendant rented the house of that member of the firm-held not incompetent testimony to go before the jury. Ibid. 12. The general rule that a defendant in ejectment may be permitted to set up an outstanding title in another, and that the landlord may defend the action by being made a co-defendant, does not apply in action by a purchaser at a sheriff's sale to recover possession. Avent v. Read, 2 P. 480. LIBEL. 1. In action of trespass the publication of a libel cannot be established by a comparison of one paper which is not proved to have been published with another, published but not produced on the trial, nor its absence accounted for. Simpson v. Wiley et al. 4 P. 215. 2. Admissions of defendant in a letter as to the publication of a libel, cannot be proved where the letter itself is not produced or its absence accounted for. Ibid. 3. Evidence of a general impression that defendants are the editors of a newspaper in which a libel is charged to have been published, is not testimony that they are joint partners and editors thereof. Ibid. LIEN. 1. The lien of an execution is destroyed by an injunction-semble. Barnes v. Baker & Sledge, A. R. 373. 2. A mortgagee of slaves files a bill to foreclose against the administrator of an estate reputed insolvent-held that by a delay to foreclose for thirteen years the lien was lost. Gayle et al. v. Singleton, 1 S. 566. 3 A judgment rendered during term time, does not relate back so as to defeat a bona fide purchaser or assignee. Pope v. Brandon et al. 2 S. 401. 4. A lien is created on property taken in virtue of an attachment which the right to replevy cannot impair, if it be not done by giving special bail. Cary v. Gregg, 3 S. 433. 5. A purchaser of real estate has the right to discharge liens and remove disabilities upon such estate, in order to obtain and perfect a title to himself. Smith v. Pettus, 1 S. & P. 107. 6. To constitute an equitable lien, there must be a consideration not only good but valuable and adequate—and what is an adequate consideration can only be one not so disproportionate, as to shock the sense of morality and fair dealing. Eaton v. Patterson & Hinchman, 2 S. & P. 9. 7. A court of equity would always prefer the oldest lien of a creditor on the estate of a debtor, when proper diligence is exercised. Ibid. 8. When a creditor has been first in point of time, in pursuing legal means to obtain payment of his debt, his lien in equity will be extended back to the time when his legal remedy failed-but this principle is not to be so construed, as to prevent a debtor from preferring one bona fide creditor to another. Ibid. 9. An execution does not lose any lien acquired at the time of its issuance, by being subsequently suspended in its operations on particular property, by proceedings to try the right of such property, claimed under the act of 1812. Mills v. Williams, 2 S. & P, 390. 10. Such execution (so arrested as to any particular property, at any other period,) may rightfully be levied on other estate of a defendant, for its satisfaction, and does not lose its preference in point of time, over other executions levied after the time of the lien first acquired, and arrested by a trial of the right of property. Ibid. 11. A and B were securities to a bond given to try the right of property which had been levied on by sheriff-the property upon the trial was found subject to the execution, and they paid up the judgment rendered against their principal. Afterwards the same property was again levied on under other executions:- -A and B procured the issuance of an execution on the judgment upon which the trial had taken place, and the property was sold under all the executions-held that the proceeds were to be applied for the benefit of A and B, on the execution paid off by them. Mills, Sheriff v. Williams, 2 S. & P. 390. 12. In the event of the death of a defendant after execution has been issued, it seems that no revival against the personal representative would be essential, where regular executions have preceded his death, and a lien has been kept up and continued from the first execution to the last. Ibid. 13. For it seems also, that in cases where an execution is returned to the proper term, and the clerk within a reasonable time (consistent with his other duties) issues an alias or pluries regularly thereon, any lien which may have been acquired by the original execution, is transferred from it, (by such regular issues) to such alias or pluries, and is thus continued and preserved. Ibid. 14. Where, however, executions have not regularly issued from term to term, so as to keep up the lien acquired on an original fi fa, and rights have been obtained by third persons to property in the possession of a defendant, while the first execution was in the sheriff's hands, it is competent for strangers to take advantage of the loss of the lien. Ibid. 15. But semble, where executions are taken out upon a judgment obtained in one's life time which are regularly issued and returned, and after the defendant's death a subsequent execution is issued and levied upon property which the defendant may have had in his possession before his death-a lien is acquired which the death of the defendant does not destroy, so as to vest the property in his personal representatives. 1 bid. 16. And where an execution thus regularly preceded is issued after the death of defendant, though it might be irregular, yet it is not void but voidable only, and cannot be questioned by a stranger. Collingsworth v. Horn, 4 S. & P. 237. 17. So it seems a pluries execution issued upon a judgment obtained in the life time of a defendant, and which has been regularly preceded by alias and original, both returned nulla bona, is not void because issued after the defendant's death. Ibid. 18. Where a sale of real estate has been made by a first purchaser to a second bona fide vendee, without notice of incumbrances, upon a valuable consideration, and no conveyance has been made, or any part of the purchase money paid, chancery will arrest the entire subsequent sale and sustain the lien of the original vendor for the purchase money upon the premises sold. Dufphey v. Frenaye, 5 S. & P. 215. 19. But in such case, where part of the purchase money is paid by the second vendee, and possession and title deed have passed to him, he will be protected in chancery to the amount of all advances made in consideration of the purchase before notice of an incumbrance, (and it would seem in some cases to the extent of valuable improvements) against the lien of the origi nal vendor, who may have taken an incumbrance for the purchase money, but failed to give notice either actual or constructive. Ibid. 20. A having purchased real estate from B, executed notes for the purchase and money, a mortgage to secure the payment which was acknowledged before one justice of the peace, and recorded in the office of the clerk of the county court. Afterwards, before the payment of the purchase money, A being in possession, made a bona fide sale of the premises to C, upon valuable consideration, and placed C in possession, receiving part of the purchase money, and executing unconditional title deeds, without notice to C of the lien of B; C, subsequently being informed of B's lien, agreed with A to withhold the payment of the instalments due by C, until the sequel of B's claim, who filed a bill praying a foreclosure of his mortgage, and a sale of the lands for the discharge of his lien: on this bill it was held1st. That the recording of the mortgage taken by B under the acknowledgment before one justice of the peace, could not operate as notice to C of the incumbrance upon the land. 2d. That the land should be sold by the master in chancery (giving C time to discharge the amount of the incumbrance) and the proceeds, after first discharging the amount advanced by C, before notice of the incumbrance, applied to the payment of the sum due B under the mortgage. Ibid. 21. A deed made between parties in another State under a contract contemplating no final execution or performance in this State, must be controlled in its effect (as to the validity against the lien of strangers upon the property conveyed) in respect to its proof or acknowledgments and registration, by the laws of the State where executed. Caldwell v. Edwards, 5 S. & P. 312. 22. Thus where slaves at the suit of a creditor, had been attached in this State, and trespass was brought against the sheriff, and a bill of sale was relied on, made by the debtor to the plaintiff, in the State of Tennessee; and it appeared that the bill of sale had not been proved or acknowledged and recorded within twelve months from its date, as required by the statute of Tennessee-it was held that the bill of sale was void and of non-effect, as against the lien acquired in this State and so no trespass lay against the sheriff. Ibid. pur 23. When parties being applied to to become the accommodation indorsers of one, on a bill of exchange, to secure themselves took a deed of trust on the latter's property, and indorsed the bill, and the bill not being negotiated, subsequently executed a new bill, with the agreement that a new deed of trust should be executed,-and on application to the trustee for that pose the date of the original deed was changed to a later date, and duly recorded; and afterwards the trustee, on assurances of the debtor, that the debt secured by the deed had been paid, took a deed of trust to himself on the same property-held that chancery had the power of decreeing a sale of the trust property in favor of the original deed, and thus saving the lien thereof to the benefit of the first cestui que trust. Garrard, et al. v. Webb et al. 4 P. 73. 24. It seems that one having a lien upon property, liable to waste or loss, might well stipulate with his debtor to have it insured, and might receive a premium and take the risk himself, provided the transaction be bona fide. Driver v. Fortner, 5 P. 9. 25. Where a vendor of real estate seeks to enforce a lien for the purchase money against the estate in the possession of the vendee's assignee, it is not necessary that all the mesne conveyancers (having no interest) should be brought before the court. Hayley et al. v. Bennett, 5 P. 452. 26. Where a vendor seeks to establish his equitable lien for the purchase money against real estate sold in the possession of the vendee's assignee-the fact that a decree has been made against the vendee, for any deficiency which might exist after a sale of the premises, such vendee being only before the court by decree pro confesso, will not authorize a reversal here-the case being brought before the court by this vendee's assignee alone. Ibid. 27. Aliter, if the case had been prosecuted here by the vendee himself. Haley, et al. v. Bennett, 5 P. 452. 28. All the essential incidents of a mortgage in particular regard to a lien upon the premises for the purchase money, attach to and control the contract for the sale of lands, where the vendee makes a bond conditioned for title where payment is complete. Ibid. 29. The vendor of real estate, who parts with the possession, and executes a bond conditioned for the making of titles, when the purchase money is paid, has a lien upon the estate, which he may enforce in chancery against the estate itself, in the possession of the assignee of the vendee. Ibid. 30. Nor is a vendor in such case bound first to proceed against the vendee for the recovery of the purchase money before he seeks satisfaction in chancery against the premises sold. Ibid. 31. And a vendor, in such case, may well maintain ejectment for the lands sold, though a recovery in such action might be prevented by the vendee's bill in chancery to redeem.. Ibid. 32. But the recovery by a vendor of the possession of the premises in ejectment, would not have the effect of disannulling the contract of sale. Ibid. 33. The vendor in such case could only maintain the possession until the rents and profits had discharged the incumbrance, when chancery would compel a conveyance to the vendee or his assignee. Ibid. 34. Where a constable levied on and sold property, although bound by executions in the hands of a sheriff, and paid over the money to the plaintiffs in the executions in the sheriff's hands, and the plaintiff's afterwards paid the same back to the constable, under advice that his levy and sale had divested the executions in the sheriff's hands of their lien—it was held that the plaintiffs could not afterwards charge the sheriff with negligence, although he also was advised that the proceedings of the constable had divested the executions in his hands of their lien, and had acted under that advice. Marshall for use &c. 6 P. 65. 35. The lien of executions in the hands of the sheriff, is not divested by a subsequent levy and sale by a constable of defendants effects, notwithstanding the act of 1828. Hamson v. 1bid. |