#### *Rebecca T. Holmes, Isaac E. Holmes, James*G. *Holmes, Charles E. Miller, trustee of Alexander Frazer, and Mary, his wife, and Jane Neyle, adm'x of Henry M. Neyle, vs. John M'Master.*

Bill by several persons, alleging that defendant, in consequence of his occupancy of a lot and the buildings thereon, was liable to account for the rent to some one or more of the plaintiffs) sustained under the circumstances of the case, and the defendant ordered to account for the rent to one of the plaintiffs.

A tenant held to be justified under the circumstances in quitting the premises before the expiration of his lease.

The title of a purchaser of lands at sheriff’s sale dates from the time the sheriff’s deed is executed, and not from the day of sale.

*Before*Johnston, Ch. *at Charleston, February,*1844.

The decree of his- Honor the Chancellor is as follows :

This is a bill filed under very peculiar circumstances. The defendant, John M’Master, having for a considerable time occupied a lot of land, and the buildings thereon, into the possession of which he was let by the agent of Isaac E. Holmes, one of *341the plaintiffs, has refused to pay the rent claimed in consequence of his occupancy,, either to the said Isaac E., or to any of the other plaintiffs,, who claim under him ; and the bill is filed by them all, jointly, alleging that he must be bound to pay to some one, or more, among them. The material circumstances are these:'

On the 31st of March, 1836, the said Isaac E? Holmes purchased the lot of land in question, extending from King street to St. Philip’s street, in the city of Charleston, from Charles E. Miller, a plaintiff in the case, for a price stipulated, consisting partly in cash, and partly in credit; and having made the cash payment, he gave his three several bonds to the said Miller, bearing date the day and year aforesaid, to secure the credit part of the purchase ; one conditioned for the payment of $6000; another for $2000 ; and the third for $1000; and all to fall due the 31st of March, 1837; and the better to secure the payment of said bonds, he, on the same day, mortgaged the premises to •him. It is not said, in any part of the pleadings or of the evidence, that this mortgage was ever registered.

The said Miller, afterwards, at some time not stated in the pleadings, or disclosed by the evidence, assigned these three bonds as follows : the bond of $5000 to the plaintiffs, Alexander Fraser, and his wife, Mrs. Mary Fraser ; and the two bonds for $2000 and $1000, to Henry M. Neyle, who has since departed this life, and to whom the plaintiff, Jane Neyle, has administered.

These bonds, thus outstanding and unpaid, as they still continue to be, a judgment by confession was obtained and entered up by the Bank of Charleston against the said Isaac E. Holmes, on the 27th of November, 1839, for about $32,000, and *Ji. fa.*lodged, accordingly, on the same day.

These incumbrances being on the aforesaid lot, with its buildings, the defendant, M’Master, entered into a verbal agreement with James G. Holmes, the agent of the said Isaac E. Holmes, for the rent of 'the premises. Under this verbal agreement, whatever it was, he was let ■ into possession about the 8th of March, 1840. He says, in his answer, that he understood that he was to have the whole of the lot, as well that part which fronts on St. Philip’s street, and is separated from the residue by a partition fence, as that part which extends from said partition fence to King street, and on which the buildings are. The plaintiffs represent that he was to have only the latter portion. '

Depending upon the terms of the agreement, by which he *342was to be allowed a certain portion of the rent in repairs, he expended considerable sums for that purpose.

In this state of affairs, the defendant, in April, 1840, drew up the following instrument, which, as he says, was in conformity with his understanding of the verbal agreement, and sent it by his son to Mr. James G. Holmes, the agent of Isaac E. Holmes, to be signed by him :

“Charleston, *South Carolina :*

*“I*agree to lease the four and half story brick house and lot, with all its appurtenances, known as No. 349 King street, to John M’Master, for the .term of four years, commencing on the 8th day of March, 1840, for the sum of $1000 per year, to be paid in quarterly instalments. And I further agree to allow to the said John M’Master the sum of $600, to be paid out of the first part, of the first year’s instalment of rent, for tinning the roof and shelving the store of the said house.”

Mr. James G. Holmes appended the following words to the foregoing instrument, and then subscribed it so amended :

“The said lot extends only to the fence which separates it, at present, from that part of the same *lot*which *fronts on St.*Philip’s street. Mr. M’Master, at the close of the lease, is to return the property in good repair, excepting only ordinary-wear and tear from time ; and-is to execute, when required, the regular lease, with the usual covenants therein.”

No date was put to this paper when subscribed by James G. Holmes, as aforesaid ; but it was executed in April, 1840, as I have stated.

The defendant received the paper in this condition, and did not insist on the whole lot, nor did he relinquish his possession extending from the partition fence to King street. He paid rent punctually, in conformity to the said instrument, for *the whole of*the first year, ending the 8th of March, 1841.

On the 27th of March, 1841, at the request of the said Isaac E. Holmes, and for his accommodation, he accepted four drafts drawn by him in favor of Messrs. Potters *&,*Kelsey ; the three first being for $250 each, and payable, respectively, ón the 8th days of June, September, and December, following; and the fourth, for $215 17, payable the 8th of March, 1842; the said acceptances being in full for the quarters rents falling due on the days of payment of said drafts, respectively. These drafts he paid as they came to maturity.

Besides this, the said Isaac E. Holmes *took up goods at*the *343said defendant’s store, between the 8th of March and 31st of December, 1841, to the amount of $493 80, to wit, $372 97, for himself, and $120 83, for his sister. Moreover, the defendant expended $13 25, for necessary repairs. All these sums were, by agreement, to be discounted from the rent to accrue, and before the expiration of the second year, (March 8, 1842,) placed the defendant in advance of his payments for rent up to September, 1842.

On the 28th of December, 1841, the said Isaac E. Holmes, sinking under accumulating embarrassments, assigned and conveyed the whole of his property, including the lot in the possession of the defendant, to James G. Holmes, in trust for the payment of his creditors.

In the month of January, 1842, the sheriff having levied the execution of the Bank of Charleston upon the premises in the possession of the defendant, advertised said premises for sale.

The defendant being thus notified of the existence of this incumbrance, caused the instrument given him by James G. Holmes, already mentioned, and under which he occupied the lot, to be put on record ; which was done the 2d of February, 1842.

The sheriff proceeded, and sold Isaac E. Holmes’s equity of redemption in the said lot, on the 4th of April, 1842. Being sold subject to the mortgage, the lot brought only $85 ; and was knocked down at that sum, which was bid by James G. Holmes. The name of the real purchaser was not made known: at the time, nor for a long time afterwards. At length, on the 10th of June 1843, the sheriff made a title to the plaintiff, Miss Rebecca T. Holmes.

In the mean time, to wit, on the 1st of May, 1843, a bill was filed by Miller, the mortgagee, and his assignees of the bonds given by Isaac E. Holmes, to secure the purchase money of the lot still due from the said Isaac E., against the said Isaac, and against James G. Holmes, the assignee of the said Isaac, and the ostensible purchaser of said lot at the sheriff’s sale, and against M’Master, 'who was in possession of it, seeking to foreclose the mortgage. M’Master answered the bill some time in June folio wing, and there the proceeding rested.

M’Master having his mind thus awakened to the liens of the mortgage and judgment; feeling uncertain to whom he could safely pay his rent; seeing that his landlord had no longer any power to protect him in his possession, his title being broken down by paramount incumbrances, and he being insolvent and *344incapable of indemnifying him; and that his possession depended upon the caprice of the purchaser (whoever that might be,) of the equity of redemption, and of the mortgagees, and those who might become purchasers under a foreclosure sale, when that might be ordered, became anxious about his situation. The landlord was already in his debt, • and unable to settle. Would the purchaser of the equity of redemption assent to his longer continuance on the premises, unless upon condition of his paying rent to such purchaser *1*Would that purchaser claim the arrearages of rent ? If so, would he be allowed credit for. the sums anticipated by the original landlord! In either case, would he be safe in making payment, and in .depending on the ability of this purchaser to continue his possession 1 Must not that depend on the will of the mortgagee, and of the purchaser under a foreclosure ?

Under these anxieties and perplexing uncertainties, he, as early as March, 1843, began to meditate an abandonment of the premises. For this purpose he sought the consent of one of his own tenants, who was in possession of premises belonging to himself, to put those premises at his disposal; and having obtained his consent, he, at considerable expense and sacrifice, set about making such alterations in said premises qs were necessary to fit them for his accommodation ; and was on the eve of removing to them, when, on the 15th of June, 1843, the said Isaac E. Holmes, James G. Holmes, Rebecca T. Holmes, Alexander Fraser and wife, and Jane Neyle, being all the parties who could possibly have an interest in the premises, or the rents, joined in the following papers, endorsed on a copy of what has been called the lease :

“We consent that John M’Master continue peaceably and quietly to occupy the house and lot in King street, within referred to, leased to him by I. E. Holmes, until the expiration of the lease, without interruption from

(Signed) James G. Holmes,

James G. Holmes,

*Assignee of 1. E. Holmes.*

I. E. Holmes,

Rebecca Holmes,

Northrop *&*Walker,

*Solicitors of Dr. Alex'r Fraser and Wife.*

Jane Neyle.”

*345“Charleston, *15th*June, 1843.

“Mr. John M’Master, King street, Charleston, S. C.

Pay James G. Holmes, or order, whatever rent you now, or hereafter, may owe to ns, or either of us, on the premises you occupy in King street, Charleston, S. C.

(Signed) I. E. Holmes,

Rebecca T. Holmes,

James G. Holmes,

*Assignee of 1. E. Holmes.*

Northrop & Walker,

*Solicitors of Dr. Alex'r Fraser and Wife.*

Jane Neyle.”

(Indorsed.) I do hereby assign and transfer this order, to Chas. E. Miller, trustee of Alex’r Fraser and wife, and Jane Neyle, Adm’x.

(Signed) James G. Holmes.

Isaac E. Holmes also indorsed on the same an assignment to Miss Rebecca T. Holmes, and her assigns, of all his right, title, and interest, in the said lease, authorizing and empowering her to receive the rents due, and to become due.

These papers were put into the hands of Messrs. M’Cready & Caldwell, the defendant’s solicitors, while he was yet on the premises. He quitted them within a few days, and shortly after-wards his solicitors made the following answer :

“Mr. M’Master does not recognize the right of any one, or all of the above named individuals together, to demand rent from him; insisting, that he has paid more than the value of the premises already, for the use and occupation he has had of them; and that he is not bound by any lease.

M’Cready *&*Caldwell.

29th June, 1843.”

And thereupon .this bill was filed.

The defendant cannot insist on his disappointment in not getting the whole lot. There is no other evidence of the contract than the memorandum signed by James G. Holmes. He must be held to have waived all objections to that, and to have accepted it by retaining possession, and continuing to pay rent under it, and by causing it to be registered.

But while I hold him bound by this evidence of recognition, I cannot regard it in any other light than as an executory contract, to be enforced according to the equitable circumstances of the case. How should it be enforced here ? It is true, that *346there is no regular demise of the premises *to the*defendant, nor has he subscribed any stipulation to pay the specific rents set forth in the memorandum. But by acquiescing in the memorandum, when delivered to him, he authorizes us to consider it as having relation back to the time *he*took possession *;*and to regard him as having entered under the instrument, and according to its terms. Then, suppose him to have been let in under that paper ; it is too clear to admit of doubt, that he must be held to the performance of every thing therein required of him ; which must be looked upon as conditions of his gaining the possession, and of which he was warned by the face of the paper; and this court, at least, must regard the case, as if a regular lease, which ought, according to the memorandum, to have been executed, had been actually executed, containing all the stipulations indicated in the memorandum.

But suppose that had been done, which equity would have required; and that this memorandum is to be regarded as a regular lease, and binding on both parties. What then? Would Mr. Isaac E. Holmes, the landlord, in the face of what has taken place, be entitled to enforce it, in all the rigor of its terms ? Not in this court, whatever he might do elsewhere. His title, the only protection of his tenant, has been defeated by incum-brances paramount, existing at the time of the demise, and of which the tenant, when he entered into the contract, had no notice. But notice, or no notice, the title has been *defeated;*and as it formed the protection on the one hand, which constituted the consideration for the services to be rendered by the tenant; on the other, the destruction of the one was the extinction of both. A lease is an entire contract; and if interrupted, it lays the ground of an entire rescission. Mr. M’Master, from the time his landlord’s title was destroyed, was so far released from his contract, that he is not, of necessity, bound for the stipulated rent for the time of his actual occupancy. If, upon the spur of the destruction of Mr. Holmes’ estate, such arrangements had been made as to have secured the defendant in his possession for the whole remainder of the term, he might have been bound to have continued his possession, and to have paid the stipulated rents. But why ? Because it would have been equitable, that when there was no disappointment, but a perfect security against disappointment on his part, he should not be at liberty to take advantage of a flaw, by which he was not injured. But where all the muniments, under which he could hold, were *347swept away, and none extended to him from any quarter, for his protection, what was he to do What could he do, but prepare to relinquish the possession ? He was not to be restrained, because, after making all his preparations, at considerable expense and sacrifice, for his removal, he was, at the last moment, assured he might safely remain on the premises. Then, I hold, that under the circumstances, he was entitled to quit; and, under the same circumstances, I do not think he should be chargeable with a *pro rata*rent for the term he had already occupied. He should be regarded as a tenant at will and liable for use and occupation at a reasonable rate. It does not follow,.that because he agreed to pay the rent mentioned in the memorandum, with a right to remain on the premises for four years, he would have agreed to pay at that rate for a shorter term, under an uncertainty when he might be compelled to quit.

For the time of his actual occupancy, I hold that he is liable for what is reasonable under all the circumstances. For so much of this time as occurred from his taking possession, until the sale by the sheriff, he was liable to Isaac E. Holmes, the owner of the land ; from that time forward, till he left the premises, he was liable to Miss Holmes, who became the owner.

It has been argued, that Miss Holmes, by virtue of her purchase, became entitled to whatever remained due on the lease. 1 have said the lease was destroyed by her purchase — but I build nothing on that here : because that might be true as between Mr. Holmes and his tenant, and -not true as between him and the purchaser of his interest in the land. But I rather think Mis Holmes cannot claim under the contract of lease, because she has no privity with it. She claims by a title paramount to the lease, under the judgment, which did not stay, when its time came, to enquire whether there was or was not a lease. After her purchase she was not bound by the lease, but might have ejected the tenant, and have said, as the bank, under whose judgment she bought, might have said, and by the sale did say, this lease was made in derogation of my rights, and is nothing to me. Then, if the lease was not binding on the bank or its purchaser, it is not easy to see what right either can have in that which they wanted to break up. If not bound by it, there would seem to be a want of mutuality in allowing them any of its benefits.

What Miss Holmes bought was the equity of redemption. The value of the property vtas depressed by the moitgage debt. *348Miss Holmes cannot have the land for less, on account of the incumbrance, and yet be entitled to the aid of any other assets • or property of Mr. Holmes, to aid her in discharging the incumbrance. She gave $85 for these premises, subject to the mortgage — which was as much as to say that they were worth that sum, besides the amount of the mortgage. Now, suppose, that because Mr. Holmes is still bound (as he certainly is,) to the mortgagee, for the mortgage debt, and being bound to satisfy that, he is, therefore, bound to assist Miss Holmes to take off the incumbrance ; it would follow, that if the arrears of rent on this lot were equal to the mortgage debt, Miss Holmes might avail herself of them, and thus possess herself of Mr. Holmes’ property, worth $8,085, for $85, and require him to pay as good as the whole price. This can hardly be the law of the case. I think Miss Holmes, by her purchase, got Mr. Holmes’ title to the-land, reference being had to the claim of the bank, and that nothing passed to her but the land. The arrears of rent due from the tenant at will, continued in Mr. Holmes, as a personal right.

Then, I think that his assignment passed it to her, and her assignment passed it, with her own right, as to rent, to James G. Holmes, who passed it again to C. E. Miller, trustee, by his indorsement on the draft of the 15th of June 1843; so that, at last, the whole liability of the defendant, for use and occupation; centres in Mr. Miller, and the only use to be made of the distinction between the rents accrued before and after the sheriff’s sale, is in relation to the amount for which the defendant may have been in advance with Mr. Holmes before the sale.

(I think Miss Holmes’ original part of the rents, (or compensation for use and occupation after her purchase,) is not liable to any deduction for advances to Mr. Holmes. It was her land that was occupied after the sale, and not Mr. Holmes’. If any balance exists against Mr. Holmes for over advances, he is liable for that.

It is decreed, that the commissioner take the accounts according to the foregoing opinion, and let each party pay his own costs.

The complainants appealed, on the following grounds :

1. That I. E. Holmes’ mortgage of the house and lot in King street, to Charles E. Miller, on 31st March, 1836, being duly recorded on *22d*April, 1837, and the judgment of the *Bank of**349*Charleston vs. I. E. Holmes,*for $32,000, being entered up on 27th November, 1839, the defendant, John M’Master, had legal notice of these incumbrances on the said house and lot, at the time he leased the said premises from I. B. Holmes, and went into possession on the 8th March, 1840.

2. That his Honor the Chancellor, inadvertantly overlooked the fact stated by James G. Holmes, and admitted at the trial by defendant’s counsel, that before the filing of Charles E. Miller’s bill of foreclosure, an offer had been made to John M’Master to give him a receipt for the rent due, signed by any one, or all of the parties in this suit, but he refused to pay the rent, or take such receipt.

3. That his Honor the Chancellor, inadvertently overlooked the fact stated by James G. Holmes, and admitted at the time by the defendant’s counsel, that when the defendant’s counsel was first employed by defendant, and immediately after the sale of the premises by the sheriff, in April 1842, James G. Holmes, acting as agent for his daughter, Miss Holmes, offered to give to the defendant, through his counsel, precisely such a paper, assur-' ing to him the possession of the premises till the expiration of the lease, as was eventually drawn up and tendered him, and stated in the pleadings, and such as the Chancellor now pronounces would have been sufficient.

4. That John M’Master was neither disappointed in his lease, nor injured nor disturbed in his possession of the premises, nor were they occupied or used by any one after he abandoned them, till the expiration of his lease in March, 1844.

5. That John M’Master never was a tenant at will, but having come into possession of the land by lawful title, his holding over made him a tenant at sufferance, and as such, or as a tenant under a parol lease, his lease was, according to law, for a year, and he had no right to give up the premises at the end of the first quarter of the year, without paying the year’s rent.

The defendant also gave notice of appeal, as follows :

The defendant appeals from the decree of his Honor, and respectfully insists that the bill ought to have been dismissed with costs.

1. Because if either of the complainants was entitled to compensation from the defendant, by reason- of his possession of the premises, the remedy at law was plain and adequate, by action of assumpsit for use and occupation.

*?2. Because the case made by the bill and answer, shews that the occupation of the premises by the defendant, after the 8th March, 1842, was not beneficial to him, but injurious.

3. Because the defendant was a purchaser for valuable consideration, as well as the complainant, Rebecca T. Holmes, and if by her neglect to take a conveyance from the sheriff, until after the mortgagee had filed his bill for foreclosure, she lost her right of action at law, she can have no equity against the defendant, who in fact paid a much larger sum, to wit. $507 25, for the premises for the time he occupied it after *the*sheriff’s sale, than she did for the equity of redemption, to wit. $85.

4. Because the complainant, Charles E. Miller, in whose favor the decree is pronounced, was a mere volunteer, who had already filed his bill against the defendant for a foreclosure, and had waived his equity for the rents and profits, if he had any, and before the decree in this case was given, had actually received full satisfaction of his debt by a sale of the mortgaged premises under a decree in his suit for foreclosure, taken at the same term at which this case was heard.

The defendant further insists, that if he is liable to account to the complainant, Rebecca T. Holmes, for the value of the premises from the day of the sheriff’s sale, he ought to be credited in such account with his advances and payments to the complainant, I. E. Holmes, over and above the actual value of the premises ascertained upon the principles of the decree.

. Because the said Rebecca T. Holmes, in fact, took an assignment of the rights of the said Isaac E. Holmes, to cover the period between the day of sale and the date of the sheriff’s conveyance, and thus by her own act assumed his responsibilities with his rights.

*H. A.*DeSaussure, for the complainants.

McCready, contra.

Curia, *per*JohNSton, Ch.

This court is satisfied with the decree from which the appeal is taken.

As regards the admissions spoken of in the 2d and 3d grounds taken by the plaintiff, though there was some conversation at the bar between James G. Holmes and the defendant’s solicitor, I have no recollection of admissions to the effect stated. I feel very sure, if they had been brought to my view at the trial, as evidence intended to be relied on, they would have appeared on *351my notes. This matter, therefore, being necessarily left to the defendant’s counsel, and his recollection differing from the statement, it must be discarded.

In relation to the most material of the defendant’s grounds,of, appeal, this court is of opinion the bill was well filed. Independently of the matters of account and the uniformity of a remedy here by which multiplicity and circuity of suits is prevented, we are of opinion that the plaintiff Miller, had a right to come here upon the foot of the agreement assigned to him, and to join his assignors in the bill.

The only part of the decree which appears to require explanation, is that part which seems to regard the transfer of I. E. Holmes’ title to Miss Holmes, as dating from the sheriff’s sale, instead of the 10th of June, 1843, the time when the sheriff executed the deed to her. The decree must be corrected in this respect, the effect of which correction will be to allow the defendant a set off for his advances and demands, to and against I. E. Holmes, up to the date of the sheriff’s deed.

With this explanation, it is ordered that the appeal be dismiss- ■ ed and the decree affirmed.

The whole court concurred.