#### *Cole *vs.*Patterson.

The non-payment of rent for a period of from 20 to 24 years is not sufficient to justify the *presumption of payment*where circumstances exist, tending to excuse the delay in demanding the rent; nor under such circumstances will a release or conveyance, extinguishing the rent, be presumed.

Where a reversion is severed by the death of the Isssor and a descent to his heirs at law, the rent will be *apportioned,*and the heirs may separately bring actions for their several proportions.

An action may be maintained by one of the heirs against the *tenant*or his assignee, although the latter by release .has obtained the interest of the co-heir.

Question of *estoppel,*from the statement of a fact in a deed, considered.

This was an action of *covenant,*tried at the Delaware circuit in May, 1840, before the Hon. John P. Cushman, one of the circuit judges.

The plaintiff declared on a *lease*executed by *John JET. Myer*to *Solomon Parsons,*bearing date 1st May, 1800, conveying to the lessee in perpetuity 155 1-4 acres of land, part of lot No. 35, in the subdivision of great lot No. 19, in the Hardenberg patent, subject to an annual rent after 1st May, 1810, of $31. *Parsons*entered, and remained in possession of the demised premises until 1814. He was succeeded in the possession, by one Gorham Silliman, who *paid rent*under the lease. In 1814, the defendant entered into possession of 75 1-2 acres ; part of the demised premises. *My-er,*the lessor, died in 1806, leaving as his heirs at law, his sister *Bebeecay*the wife of the Rev. Jeremiah Romeyn, and two nieces, *Catharine amd Rachel,*the children of his deceased sister Maria. *Catharine*married *Barnet Cole,*the plaintiff in this cause, of which marriage a living child was born, who died within a few days after its birth ; *whereby the plaintiff became tenant by the curtesy*of *one-fourth*of all the real estate whereof John H. My-er died seized. *Catharine,*the wife of the plaintiff, died in 1812. On the *second*day of *March,*1838, this suit was *commenced;*and on the trial of the cause, the plaintiff claimed to recover *his proportion of the*£ *457 ] *rent*chargeable upon the 75 1-2 acres possessed *by the defen*349dant, together with the interest thereof, estimated from the tiineit annually fell due, amounting in the whole to 0345.61. The plaintiff also showed that in 1835 and 1836, he *demanded payment*of rent from the defendant ; and that in the same year he commenced an action of ejectment for the recovery of the premises, which was subsequently discontinued.

On the part of the defendant, it was shewn that on the 28th February, 1818, *Jeremiah*Romeyn, and Rebecca his wife, conveyed the demised premises *in fee*to the defendant. The defendant also read in evidence a *deed of partition*of certain lands in the *Mardenberg patent,*dated 20th August, 1833, to which the plaintiff in this cause was a party, together with Herman M. Romeyn (who it was shown had succeeded to the rights of *Rebecca*Romeyn,) and one George P. Oakley. By this deed, certain premises are allotted to the plaintiff in this cause, as *tenant by the curtesy,*and to Herman M. Romeyn, as reversioner in fee, including among other lands the premises contained in the lease declared upon, with an exception in these words: “ *excepting and reserving thereout*75 1-2 *acres,*SOLD *to James Patterson off lot*Ho. 35.” Lot Ho. 35 is subsequently mentioned in the partition deed as a lot under lease, containing 79 3-4 acres, owned by John Coon, the rent of which is stated at 015.95.

The counsel for the defendant requested the judge to charge the jury; 1. That the parties in this cause being *tenants in common*of the rents reserved in the lease, the plaintiff was not entitled to sustain an action against the defendant. 2. That by the admission in the partition deed, that the 75 1-2 acres were *sold,*the plaintiff was estopped from alleging the contrary. 3. That the non-payment of rent for the period of time during which the plaintiff alleged it had not been paid, would authorize the jury to *presume*a conveyance or release from the plaintiff. 4. That the evidence established an adverse possession. And 5. That if the plaintiff was entitled to recover, *interest*on the rent under the circumstances of the case was not recoverable. The judge refused so to charge ; and on the contrary instructed the jury that the plaintiff was entitled to recover the sum demanded *by him, a verdict was found accordingly, which the defendant [ *458 ] moved to set aside.

*A. J. Parker,*for the defendant.

*M. T. Reynolds,*for the plaintiff.

*By the Court,*

Nelson, C. J.

Ho point was made on the trial, that the defendant was not the assignee of *Parsons,*the lessee ; that it is too late to raise the question on a motion for a new trial, as was done here.

On the death of Myers, and severance of the reversion by act of law, *350the descent to his sister and nieces, it became necessary to apportion the rent. *Comyn’s Land, and Ten.*214, 215. *Rent*is incident to the *reversion,*and must follow it: nor is there any technical difficulty in the remedy at law as supposed by the counsel, on the ground of a tenancy in common. As respects the portion of rent due the plaintiff, the defendant being the assignee of the lessee, is liable in privity of estate to an action upon the covenant. 1 *Chitty’s Pl.*36 ; 3 *Bacon,*706 *K.*6 *Id.*48 *M.*

Neither was the length of time which elapsed without demanding rent sufficient to lay a foundation for the presumption of a *release.*5 *Cow.*123. It is material to observe, that the point taken was not *presumption of payment*of the rent down to the commencement of the suit, in analogy to the statute of limitations, but of a release of the covenant. I have found no case going the length claimed. At most, but twenty-four years have elapsed—and counting from the time of the demand made by the agent, but twenty or twenty-one ; short of the period in *Livingston*v. *Livingston,*4 *Johns. Ch. R.*293, 294. See also 1 *Cowen & Hill’s Notes,*352, *n.*308. The small amount of rent, (some f 7.50 a year,) and the distant residence of the plaintiff, doubtless had some influence as to the delay.

I perceive nothing like an estoppel in the partition deed. These premises were excepted out, according to the description, as Mrs. Romeyn and her husband had previously sold them to the defendant. They were therefore not embraced in the partition between the parties. The defen- [ *459 ] dant was *not a party to the deed, does not claim under, nor is he in any way connected with it. Even if the import of the recital was as contended for by the defendant, it is but the confession of a party which might or might not conclude him. It is clear, however, that it was not intended as an admission by the plaintiff that he had sold *his*interest to the defendant. The clause is fully satisfied, by the fact that the reversion had been sold to him by the mother and grantor of *R. M. Romeyn,*and for that reason was excepted by him.

New trial denied.