21. Post, Sec. 614 (b).

22. Fitzgerald v. Beebe, 7 Ark. 310; Simers v. Saltus, 3 Denio (N. Y.) 214.

23. See Freeman, Executions, Sec. 195; Jones, Mortgages, Sec.Sec. 1654, 1897; Kleber, Judicial Sales, 205, 207, 423; 19 Am. & Eng. Enc. Law (2d Ed.) 36.

The courts occasionally lose sight of the above distinction between a sale under a prior and one under a subsequent lien, speaking of a purchaser under a prior lien as being entitled to the rent unsold by order of court to pay debts for purposes of partition.24

- (c) Subsequent lease by landlord. Not only may a landlord transfer his reversion in a part of the land leased, but he may transfer a part of his reversion in the whole land, that is, he may create another lesser estate therein in favor of a third person, and this he may do in either one of two ways, (1) by a "lease in reversion," or (2) by a "concurrent lease." By a "lease in reversion" is meant a lease to take effect in possession after the ending of a leasehold estate previously existing.25 If such lease is by its terms to commence in possession when such prior leasehold estate comes to an end, it will do so, although such estate comes to an end before the expiration of the term named in the prior lease, as for instance when there is a surrender or forfeiture thereof; while if by its terms the second lease is to commence in possession after a certain number of years, it will not commence till that time, although previously thereto the pre-existing leasehold comes to an end, either by its express terms, or by a surrender or forfeiture.26 Likewise, in the former case, the term will begin immediately if. the prior lease is for any reason void or nonexistent.27 Until entry der the lease. See Whalin v. White, 25 N. Y. 462; Condon v. Marley, 7 Kan. App. 383, 51 Pac. 924; Harris v. Foster, 97 Cal. 292, 32 Pac. 246, 33 Am. St. Rep. 187; Henshaw v. Wells, 28 Tenn. (9 Humph.) 568. Martin v. Martin, 7 Md. 368, 61 Am. Dec. 364. The sounder view is indicated in Mc-Dermott v. Burke, 16 Cal. 580; Bartlett v. Hitchcock, 10 111. App. (10 Bradw.) 87; Simers v. Saltus, 3 Denio (N. Y.) 214; Sprague Nat. Bank v. Erie Co., 22 App. Div. 526, 48 N. Y. Supp. 65; Peters v. El-kins, 14 Ohio, 344; Heidelbach,

Seasongood & Co. v. Slader, 1 Handy (Ohio) 456.

24. See English v. Key, 39 Ala. 113; Wagner v. Cohen, 6 Gill. (Md.) 97, 26 Am. Dec. 559; Stevenson v. Hancock, 72 Mo. 612; Corrigan v. Trenton Delaware Falls Co., 7 N. J. Eq. (3 Halst.) 489; Evans v. Hamrick, 61 Pa. 19, 100 Am. Dec. 595; Burns v. Cooper, 31 Pa. 426.

25. See Bishop of Bath's Case, 6 Coke, 34.B; 1 Platt, Leases, 443.

26. Bac. Abr., Leases (L) 1.

27. Co. Litt. 46 b; Bac. Abr., Lease (L) 1.

Under a lease in reversion, the lessee has merely an interesse termini.28

A landlord, although he has made a lease in reversion, retains his rights against the previous lessee, such as the right to sue for or distrain for rent, that is, he is still the reversioner and landlord,29 and he, rather than the reversionary lessee, has been regarded as the person entitled to assert a claim against the prior lessee by reason of a wrongful holding over by the latter.30

A "concurrent lease" is one granted by the owner of the reversion, to take effect, not after the termination of the pre-existing lease, but before such termination, and by it, if in proper form to transfer the reversion, the lessee named therein becomes substituted in place of the former landlord, and is, from the time at which it is by its terms to begin, and for the term during which it is to endure, entitled to the rent under the previous lease,31 may claim the benefit of the covenants and conditions thereof,32 and may give a valid notice to terminate a periodic tenancy created by the former lease.33

28. Smith v. Day, 2 Mees. & W. 684; Joyner v. Weeks [1891] 2 Q. B. 31; Lewis v. Baker [1905] 1 Ch. 46; Logan v. Green, 39 N. C. (4 Ired. Eq.) 370.

29. Smith v. Day, 2 Mees. & W. 684; Blatchford v. Cole, 5 C. B. (N. S.) 514. See Alexander v. Loeb, 230 111. 454, 82 N. E. 833, aff'g 133 111. App. 556; where the instrument of lease provided specifically that the possession should not pass to the lessee during the time the lessors were prevented from delivering possession of the premises by the action of the prior lessees.

30. Blachford v. Cole, 5 C. B. (N. S.) Thomas v. Wightman, 129 111. App. 305; United Merchants'

Realty & Imp. Co. v. Roth, 122 App. Div. 628, 107 N. Y. Supp. 511.

31. Harmer v. Bean, 3 Car. & K. 307; Morris v. Niles, 12 Abb. Pr. (N. Y.) 103; McDonald v. Hanlon, 79 Cal. 442, 21 Pac. 861; Logan v. Green, 39 N. C. (4 Ired. Eq.) 370; Russo v. Yuzolino, 19 N. Y. Misc. 28, 42 N. Y. Supp. 482; Benjamin v. Northwestern Fire & Marine Ins. Co., 119 Minn. 27, 41 L. R. A. (N. S.) 395, 37 N. W. 183.

32. Co. Litt. 215 a; Wright v. Burroughes, 3 C B. 685; Burton v. Barclay, 7 Bing. 745.

33. Doe d. Jarvis v. McCarthy, 5 New. Br. (3 Kerr) 63. And the lessor cannot ' give such notice. Wordsley Brewery Co. v. Halford, 90 Law T. (N. S.) 89.

The requirement of attornment applied at common law in the case of a concurrent lease, that is, a transfer of the reversion for a limited period, as well as when the reversion is fully transferred.34 The statute of Anne, however, it seems, dispenses with the necessity of an attornment in the former as well as in the latter case.35

- (d) Transferor's rights and liabilities. The mutual rights and liabilities of lessor and lessee are of a two-fold character, as being based either on "privity of estate" or on "privity of contract." Rights and liabilities based on privity of estate are those which result from the existence of the relation of tenancy, while those based on privity of contract are those which arise from covenants or other contracts entered into either by the lessor or lessee.

Upon a transfer of the reversion, whether by voluntary act or by operation of law, the transferor ceases to be the landlord, and the privity of estate between him and the tenant thus coming to an end, he can no longer assert rights against the tenant based thereon, nor be subjected to liabilities in that regard.36

As regards the rights of the lessor based upon the covenants or other contracts of the lease, that is, on privity of contract, it seems that, after the transfer of the reversion, since the benefits thereof pass to the transferee,37 the lessor has no right to assert any claims on account of breaches occurring after the transfer38 though

34. Bac. Abr., Leases (N.); Anonymous, 3 Leon. 17.

35. Doe d. Agar v. Brown, 2 El. & Bl. 331, 348; Doe d. Jarvis v. McCarthy, 5 New. Br. 3 (Kerr.) 63; McDonald & Hanlon, 79 Cal. 442, 21 Pac. 861; Hendrickson v. Beeson, 21 Neb. 61, 31 N. W. 266. But see to the contrary Comstock v. Cavanagh, 17 R. I. 233, 21 Atl. 498, 12 L. R. A. 57; Edwards v. Wickwar, L. R. 1 Eq. 403; Commented on 1 Tiffany, Landlord & Ten., Sec. 146 note 45.

36. See Walker's Case, 3 Coke 22 a; Black v. Davis, Batty, 80.

37. See post Sec. 53 (f).

38. Scheidt v. Belz, 4 111. App. (4 Bradw.) 431; Stoddard v. Emery, 128 Pa. 436, 18 Atl. 339, 5 L. R. A. 597; Demarest v. Willard, 8 Cow. (N. Y.) 206. And see to this effect Green v. James, 6 Mees. & W. 656; opinion of Best, J., in

Real Property.

[Sec. 53 he may as regards those previously occurring.39 It has, however, been decided in one case that the original lessor could sue on account of the lessee's breach of his covenant to pay taxes, when he, the lessor, was under an obligation to his transferee, by reason of his covenant against incumbrances, to see that the taxes were paid and had accordingly paid them.40

Though a lessor transferring his reversionary interest loses, it seems, any right of action for subsequent breaches of the lessee's covenants, he still remains liable on his own covenants, since one cannot, by his own act, without the consent of the other party, relieve himself from a contractual liability,41 the same principle being applicable here as in the case of an assignment of the leasehold, by which the original lessee is not relieved from liability on his covenants.42

- (e) Transferee's rights and liabilities. As regards rights and liabilities arising; from privity of estate, that is, from the relation of landlord and tenant, the transferee of the reversion, although merely.by way of a concurrent lease,43 becomes substituted in the place of his transferor, whether the original lessor or a previous transferee. Accordingly the transferee may recover rent against the tenant, whether the original lessee or an assignee of the leasehold, in an action of debt as distinguished from an action on the covenant to pay rent,44 though he cannot bring debt against the lessee for rent falling due after the latter has assigned his term, since there is no privity of estate in such case to support it.45 So the transferee has the same rights as his transferor to demand that the tenant refrain from either voluntary or permissive waste,46 this being a right based on privity of estate, and he has the same right as the lessor had to assert a forfeiture upon a disclaimer by the tenant of the tenancy,47 or upon a breach of an express condition in the lease.48

Vernon v. Smith, 5 Barn. & Ald. 1; 1 Smith's Leading Cases (8th Am. Ed.), 157, notes to Spencer's Case; 2 Platt, Leases, 386.

That the lessor could not, after assigning, recover rent, has been not infrequently stated or decided. Walker's Case, 3 Coke, 22 a; Doe d. Palmer v. Andrews, 4 Bing. 348, 356, per Gaselee, J.; Peck v. Northrop, 17 Conn. 217; Grundin v. Carter, 99 Mass. 15; Abbott v. Hanson, 24 N. J. Law (4 Zab.) 493; Lancashire v. Mason, 75 N. C. 455; West Shore Mills Co. v. Edwards, 24 Ore. 475, 33 Pac. 987;

Moore v. Turpin, 1 Speer Law (S. C.) 32, 40 Am. Dec. 589.

39. See Anonymous, Skin. 367; Midgley v. Lovelace, Carth. 289. Holt, 74; Harley v. King, 2 Cromp. M. & R. 18; 2 Platt, Leases, 386.

40. Wills v. Summers, 45 Minn. 90, 47 N. W. 463.

41. Carpenter v. Pocasset Mfg. Co., 180 Mass. ,130, 61 N. E. 816; Jones v. Parker, 163 Mass. 564, 47 Am. St. Rep. 485, 40 N. E. 1044; Stuart v. Joy [1904] 1 K. B. 362.

42. See post Sec. 54(d).

43. Ante Sec. 53 (d).

The question of the extent to which the transferee of the reversion succeeds to the rights and liabilities of the lessor based on privity of contract, that is, on the covenants of the lease, is hereafter discussed under the head of the running of covenants with the land.49