- Exclusion by stranger without right. There are several cases to the effect that the lessee's inability to obtain possession of the premises owing to the presence of a third person wrongfully in possession, such as a tenant holding over his term, is no defense to an action for rent.60 This view accords with the recog-t nized rule in the analogous case of the eviction of the tenant by a wrongdoer.61 There are, however, to be found occasional dicta62 and decisions63 to the contrary.

- Merger and surrender. If the leasehold interest and the immediate reversion thereon become vested in the same person or persons, either by the acquisition of the former interest by the landlord, or

58. Ante, Sec. 53(c).

59. Ante, this section, note 54.

60. Mechanics' & Traders' Fire Insurance Co. v. Schott, 2 Hilt. (N. Y.) 550; Ward v. Edesheimer, 43 N. Y. St. Rep. 138, 17 N. Y. Supp. 173; Cozens v. Stevenson, 5 Serg. & R. (Pa.) 421; University of Vermont v. Joslyn, 21 Vt.

52. And see Field v. Herrick, 101 111. 110.

61. 2 Tiffany, Landlord & Ten. p. 1301.

62. Rieger v. Welles, 110 Mo. App. 166, 84 S. W. 1136; Smart v. Allegaert, 14 Phila. (Pa.) 179.

63. Kean v. Kolkschneider. 21 Mo. App. 538; Hatfield v. Fullerby the acquisition of the latter interest, by the tenant, or by the simultaneous acquisition of both interests by the same person or persons, the tenant's interest is merged in the reversion,64 and the rent reserved upon the creation of the lesser estate is extinguished..65 When merger occurs as a result of the acquisition of the tenant's interest by the landlord, the termination of the tenancy and extinguishment of the rent are ordinarily said to be the result, not of merger, but of surrender,66 that is, of the yielding up of the particular estate to the landlord.67 If the merger or surrender takes place as to a part of the leased premises only, the rent is proportionately extinguished.68 The merger or surrender obviously does not affect the liability for rent which has previously accrued.69 ton, 24 111. 27S; Goldman v. Dieves, 159 Was. 47, 149 N. W. 713.

64. Ante, Sec. 59(e).

65. Otis v. California Petroleum & Asphalt Co., 109 Cal. 304, 41 Pac. 1087; Otis v. Mcmillan, 70 Ala. 46; Erving v. Jas. H. Goodman & Co. Bank, 171 Cal. 559, 153 Pac. 945; Liebschutz v. Moore, 70 Ind. 142, 36 Am. Rep. 182;Casey v. Gregory, 52 Ky. (13 B. Mon.) 505, 56 Am. Dec. 581; Matter of Eddy, 10 Abb. N. Cas. (N. Y.) 396; Nellis v. Lathrop, 22 Wend. (N. Y.) 121, 34 Am. Dec. 285; Mixon v. Coffield, 24 N. Car. (2 Ired Law) 301; Sutliff v. At-wood, 15 Ohio St. 186; Alvord v. Banfield, 85 Ore. 49, 166 Pac. 549.

66. American Bonding Co. v. Pueblo Inv. Co. (C. C. A.), 150 Fed. 17, 19 L. R. A. (N. S.) 557; Terstegge v. First German Mut. Benevolent Soc, 92 Ind. 82, 47 Am. Rep. 135; Dills v. Stobie, 81 ill. 202; Armour Packing Co. v. Des Moines Pork Co., 116 Iowa, 723, 93 Am. St. Rep. 270, 89 N. W. 196; Amory v. Kannoffsky, 117 Mass. 351, 19 Am. Rep. 416; Kiernan v. Germain, 61 Miss. 498; Underhill v. Collins, 132 N. Y. 269, 30 N. E. 576; Everett v. Williamson, 107 N. C. 204, 12 S. E. 187, 22 Am. St. Rep. 870; Minneapolis Co-operative Co. v. Williamson, 51 Minn. 53, 38 Am. St. Rep. 473, 52 N. W. 98; Frankel v. Steman, 92 Ohio St. 197, 110 N. E. 747; Pratt v. H. M. Richards Jewelry Co., 69 Pa. 53, 8 Am. Rep. 212; West Concord Mill Co. v. Hosmer, 129 Wis. 8, 116 Am. St. Rep. 931, 107 N. W. 12.

67. Post, Sec. 431.

68. Ante, Sec. 412, note 24.

69. Kastner v. Campbell, 6 Ariz. 145, 53 Pac. 586; Sperry v. .Miller, 8 N. Y. 336, 16 N. Y. 407; Nicol v. Young, 68 Mo. App. 448; Johnson v. Muzzy, 42 Vt. 708, 1 Am. Rep. 365; Attorney General v. Cox, 3 H. L. Cas. 340.

By the English decisions,69a if the reversion on a sublease is merged in the original reversion, the sublessee's liability for rent is terminated, the same principle applying as in the case of surrender of the. sub-reversion. How far this doctrine would be applied in this country is doubtful.69,b

- Abandonment by tenant. That the tenant abandons the premises does not affect his liability for rent,69c unless the landlord, by assuming control of the

69a. Thre'r v. Barton, Moore, 94; Webb v. Russell, 3 Term Rep. 393.

69b. The doctrine was referred to as an existing doctrine in Bailey v. Richardson, 66 Cal. 416, 5 Pac. 910; Buttner v. Kasser, 19 Cal. App. 755, 127 Pac. 811; Kri-der v. Ramsay, 79 N. C. 354; Mcdonald v May, 96 Mo. App. 236, 69 S. W. 1059. See Williams v. Michigan Cent. R. Co., 133 Mich. 448, 103 Am. St. Rep. 458, 95 N. W. 708. That the sublessor cannot recover rent after his surrender of his leasehold interest is decided in Grundin v. Carter, 99 Mass. 15; Pratt v. Richards Jewelry Co., 69 Pa. 53; and assumed in Buttner v. Kasser, 19 Cal. App. 755, 127 Pac. 811. But as opposed to the sublessee's immunity from rent on the theory of the merger of the subreversion. see Hessel v. Johnson, 129 Pa. 173, 5 L. R A. 851, 15 Am. St. Rep. 716, 18 Atl. 754. See a judicious criticism of the doctrine in an editorial note in 13 Columbia Law Rev 245.

69c. Wolffe v. Wolff, 69 Ala. 549, 44 Am. Rep. 526; Respini v. Porta, 89 Cal. 464, 26 Pac. 967, 23 Am. St. Rep. 488; Miller v. Benton, 55 Conn. 540, 13 Atl. 678; Stobie v. Dills, 62 111. 432; Martin v. Stearns, 52 Iowa, 345, 35 Am. Rep. 278, 3 N. W. 92; Bick-ford v. Kirwin, 30 Mont. 1, 75 Pac. 518; Prucha v. Coufal, 91 Neb. 724, 136 N. W. 1019; Underbill v. Collins, 132 N. Y. 269, 30 N. E. 576; Tyler Commercial College v. Stapleton, 33 Okla. 305, 125 Pac. 443; Bowen v. Clarke, 22 Or. 566, 29 Am. St. Rep. 625, 30 Pac. 430; Reeves v. Comesky, 168 Pa. St. 571, 32 Atl. 96; Barlow v. Wainwright, 22 Vt. 88, 53 Am. Dec. 79.

In Clinton Amusement etc. Co. v. Dranow, 88 N. J. L. 701, 96 Atl. 893, the highest court of the state says that there was an abandonment, not a surrender, by the tenant. This refusal to recognize that a surrender by operation of law may result from an abandonment is caused apparently by a failure to distinguish the tech-nichal term "surrender," as applied to an estate, from its ordinary use as applied to a relinquishment of possession. The common law does not recognize abandonment as a method of transferring or terminating estates in land, and the statement premises, or otherwise, can be regarded as in effect accepting the possession at the hands of the tenant, so as to effect a surrender by operation of law, as elsewhere explained.69d The landlord is, in such case, under no obligation to lease the premises to another, but may allow them to lie vacant, and yet recover the installments of rent as they accrue.69e The fact that the landlord, upon the abandonment by the tenant, makes a lease to another will, under some circumstances and in some jurisdictions, effect a surrender, so as to relieve the tenant from liability for rent thereafter accruing,69f but in so far as it does not do this, the new letting is regarded as on behalf of the former tenant, so as to relieve him from the rent under the original lease to the extent of the rent received under the new lease, and no further.69g