#### Ebenezer Farley *versus*Thomas Thompson.

The assignee of a reversion sues in debt for the rent, which was reserved by deed indented ; to which the lessee pleads a paroi agreement between him and the lessor, made before the demise, by which the lessee was to lend to the lessor a sum of money, the interest of which was equal to the rent reserved, and payable on the same days respectively, and that the rent and interest should be mutually set off against each other: it was holden that this was a good defence to the action, and that the defendant was not estopped from pleading it

The declaration in this case was in debt, “ for that one *Samuel Swett,*heretofore, *viz.,*on the 26th day of October, A. D. 1812, at *Boston*aforesaid, being seised in his demesne, as of fee, of and in a certain messuage and land situate in *Boston*aforesaid, demised the same messuage and land to the said *Thompson*for a certain term of years, *viz.,*for, and during, and until the full end and term of, five years then next ensuing ; yielding and paying therefor, during the said term, the yearly rent of 660 dollars, in four equal and quarter-yearly payments of 165 dollars: by virtue of which said demise, the said *Thompson*entered into the said demised premises, with the appurtenances, and was possessed thereof from thenceforth until the 27th day of July, 1816, when a large sum of money, *viz.,*the sum of 1155 dollars of the rent aforesaid, for the space of one year and nine months then elapsed, became and was due and payable. And after the making of the demise aforesaid, *viz., on the*26th day of October, 1814, the said *Samuel Swett,*being seised in his demesne, as of fee, of and in the reversion of the messuage, land, and appurtenances, demised as aforesaid, by his, deed of bargain and sale of that date, duly executed, acknowledged, and recorded, and here in Court to be produced, for a valuable consideration therein expressed, did grant, bargain, sell, and convey, to the said *Farley,*among other things, the said demised premises, with the appurtenances, to have and to hold the same to the said *Farley,*his heirs and assigns, *27forever ; by virtue of which deed he, the said *Farley,*then * and there became, and was, seised of the reversion of the said demised premises, with the appurtenances, as of fee; whereby an action hath accrued to the said *Farley,*to demand and have, of and from the said *Thompson,*the said sum of 1155 dollars, for the rent thereof in arrear on the said 26th of July, 1816.” There was also a second count, in which the plaintiff demanded the same sum for the use and occupation of the premises for the same term.

The defendant, besides the general issue of *nil debet,*pleads m bar that, “ before the making of the demise aforesaid by the said *Swett*to him, the said *Thompson, viz.,*on the said 26th of October, 1812, at *Boston*aforesaid, a certain discourse was had and moved by and between the said *Sivett*and the said *Thompson,*of and con cerning the leasing and demising of the said messuage and appurtenances, by the said *Swett*to the said *Thompson,*and also of and concerning the loaning of the sum of 11,000 dollars, by the said *Thompson*to the said *Swett;*and upon that discourse it was then and there agreed, by and between the said *Swett*and the said *Thompson,*that he, the said *Thompson,*should loan to the said *Swett*the said sum on interest, and that the interest thereof should be paid to the said *Thompson*by even quarter-yearly payments, and that the said *Swett*should demise to the said *Thompson*the said messuage and appurtenances for the term of five years thence next ensuing, at and for the yearly rent or sum of 660 dollars, to be paid to the said *Swett,*by even quarter-yearly payments, on the same days and times in which the said interest should become due and payable as aforesaid ; which said last-mentioned sum was then and there equal to the yearly interest of the said sum of 11,000 dollars: and further it was agreed, as aforesaid, that, for so long time during the said term of five years as the said principal sum of 11,000 dollars should remain unpaid, the said interest, when and as the same should accrue, should be and operate as a payment of and for the said yearly rent of the said messuage, and appurtenances, when * and as the said rent should accrue, and that the said *Thompson*should be acquitted and discharged of and from the said yearly rent, and that the said *Swett*should be acquitted and discharged of and from the said yearly interest, when and as the said yearly rent and the said interest should respectively accrue. And the said *Thompson*avers that he, confiding in the said agreement so made, as aforesaid, between him and the said *Swett,*afterwards, *viz.,*on the said 26th day of October, at *Boston*aforesaid, in pursuance of the said agreement, did loan to the said *Swett*the said sum of 11,000 dollars on interest, as aforesaid, and *28the said *Suett*then and there demised to the said *Thompson*the said messuage and appurtenances, at and for the yearly rent aforesaid, —■ into which said messuage the said *Thompson*thereafterwards on the same day entered, and hath ever since continued to occupy and. enjoy the same, the said term of five years being yet unexpired. And the said *Thompson*further avers, that no part of the said principal sum of 11.000 dollars hath ever been paid to him by the said *Swett,*nor by any other person ; but the said sum, on the day of the suing out of the plaintiff’s writ in this action, was, and yet is, wholly due and unpaid. And the said *Thompson*further avers that, during the said term of one year and nine months next preceding the said 27th day of July, 1816, there accrued and became due to the said *Thompson*several sums of money, for the interest of the said sum of 11,000 dollars, amounting in the whole to a sum equal to, and which then and there, in pursuance of the agreement aforesaid, was retained and applied to pay, and operated as a payment and discharge of, the said sum of 1155 dollars, which, during the same time, accrued for the rent of the said demised messuage and appurtenances ; and this he is ready to verify. Wherefore,” &c.

The plaintiff replies, that “ the said *Thompson*ought not to be admitted or received to plead the said plea, by him secondly above pleaded, wherein he alleges,” &-c., (as in *the plea in bar,) because he says that the said demise, in the said declaration mentioned, was made by the said *Swett*to the said *Thompson*by an indenture of lease sealed with the seals of said *Swett*and *Thompson*in the words and figures following, *viz. : “*This indenture, made the 26th day of October, in the year of our Lord 1812, witnesseth, that *Samuel Swett,*of, &c., doth hereby lease, demise, and let, unto *Thomas Thompson,*of, &c., his late dwelling-house, &c., with all the privileges thereto belonging; to hold for the term of five years from the date; yielding and paying therefor the rent of 660 dollars per year, during the time he shall occupy the same; ” with covenants on the part of the lessee to pay the rent quarter-yearly, to deliver up the premises at the end of the. term, to pay all taxes, and to commit no waste. One part of which said indenture being in the possession of the said *Swett,*and the counterpart thereof in the possession of him, the said *Thompson,*the plaintiff is unable to produce the same here in court; and this he is ready to verify. Wherefore, &c.

To this replication the defendant demurs, assigning the following causes of demurrer, *viz.:*1. That it begins and concludes as an estoppel, yet it contains no matter whereby the defendant is in law estopped from making the several allegations contained in his plea; 2. That by it no material allegation contained in the de*29fendant’s plea is either denied or confessed and avoided, but the said plea, and the matters therein alleged, are left wholly unanswered.

The plaintiff joins the demurrer; which was argued at the last March term here, by the *Solicitor-General*and *Sohier*for the plaintiff, and by *Prescott*and *Gallison*for the defendant.

It was argued, *for the defendant,*that here was no repugnance between the lease and the facts set forth in the plea, and, therefore, no estoppel. The plea shows what is called, in the civil law, a compensation, (1) and amounts to an extinction of the debt. It being part of the original agreement between the lessor and lessee, the assignment can * make no difference. The assignee can have no rights but what previously existed in the lessee. The rent was, in effect, wholly advanced at the time of executing the lease, by the loan made by the defendant to *Swett.*The case of *Sturdy & Al.*vs. *Arnaud*(2) seems to be decisive of the case at bar

The declaration is insufficient. It avers neither the attornment of the tenant to the assignee of the reversion, nor notice to him of the assignment, nor a demand of the rent. If it should be held that attornment is done away b) the *English*statute of 4 and 5 Anne, c. 16, still notice and demand are necessary of common right. (3)

If *Swett*had leased the premises for five years, and taken the whole rent in advance, and afterwards mortgaged them to *Farley,*as here, this latter must have taken the conveyance subject to the right -of *Thompson*to enjoy his term free of rent. The transaction in the present case must have the same effect. The plea does not show a new agreement, but in substance a payment at or before the day. The rent was, by the original agreement, extinguished by the loan, and the interest of the loan was extinguished by the accruing rent.

*For the plaintiff,*

it was contended that the defendant was es-topped by his deed to make the averments contained in his plea, and this estoppel running with the land, the plaintiff is entitled to avail himself-of it, and to the benefits of all the covenants in the lease. The rent passed to the plaintiff with the reversion, and the covenant to pay it in money is absolute. But if the agreement set up in the plea is supported, no rent could ever accrue. The lease in this case was by indenture, and so was the language of both the parties; and an indenture may operate an estoppel, when a deed poll would not. (4)

*30But if the defendant is not estopped to plead this matter, still the plea is bad. It is a plea of payment without an acquittance, and, as such, is no sufficient bar to the plaintiff’s recovery. It sets forth only a paroi agreement, * which cannot operate to avoid a contract under seal. As it was made before the indenture, it cannot operate as an accord and satisfaction. And if it were made afterwards, the plea does not aver its execution. The agreement is void, too, by force of the statute of frauds. (5)

Payment to the lessor, after the assignment of the reversion by him, can be no bar to the assignee’s demand of rent accruing after the assignment, whether notice of the assignment be given or not.

*For the defendant,*in reply.

The plea admits the existence of the lease; and the agreement set forth is not repugnant to the covenants contained in it. It merely shows the mode in which the covenant to pay the rent was to be performed. In substance, it is a plea of payment at or before the day. It was part of the original contract, by which a mutual security was provided.

It is not necessary to show an acquittance, where the deed is mere inducement to the action, as here. The foundation of this action is the occupation and enjoyment of the premises. *Nil debet*would have been a good answer, and evidence showing that nothing was in fact due, would be a sufficient defence.

As to the objection from the statute of frauds, the statute does not make the agreement void, but only prevents an action upon it. The defendant claims to hold under the lease, not under the agreement. Here was no agreement for the sale of lands.

The cause stood over to this term for advisement, and now' the opinion of the Court was delivered by

(1)

*Evans's Pothier,*408, 417.

(2)

 3 *D. & E.*599.

(3)

 1 *Saund.*234, *note*(4). — 3 *Mass. Rep.*153, *Newhall*& *Al., Adm..,*vs. *Wright.*

(4)

 1 *Salk.*276.-2 *Strange,*817.—Lord *Raym.*1557. —6 *Mod.*258.- 3 *East,*353. — 6 *D. & E.*62,63

(5)

 5 *Co.*43, *a.*— 3 *Lev.*37, 38. — *Freeman's Rep.*532. — *Bro. Abr.*tit. *Debt,*pl.72 — 7 *Vin. Abr. Debt,*B, *a.*— *Cro. Eliz.*697. — 2 *Sound.*48.

Wilde, J.

In the argument of this cause, at a former term, it will be recollected that two objections were made to the defendant’s plea.

1. That he is estopped, by his deed, to plead the several matters in his plea.

2. And if not, that the plea is insufficient.

As to the first objection, it may suffice to remark, that there is nothing in the *plea*necessarily repugnant to the * *covenants*and *stipulations*contained in the deed, and, therefore, the rules of estoppel do not apply. For this plea expressly admits the demise, the amount of rent reserved, the time of payment, and, indeed, all the material covenants. The paroi agreement pleaded, and the facts connected with it, have *31relation only to the mode of payment; and this *agreement*is averred to have been made prior to the indenture. If the terms of it, therefore, did not altogether accord with the covenants in the deed, it would by no means follow that the defendant would be estopped to set it up; because there is nothing repugnant in the supposition that parties may, *at different times,*vary the forms of a contract. Thus a defendant may, in debt upon an obligation, plead *accord and satisfaction*or a *release;*nay, even *accord*without satisfaction; and although, in this last-mentioned case, the plea would be insufficient, yet the rules of estoppel would not be applicable, the plea admitting the deed, and the plaintiff having a right to take advantage of the defect on demurrer. We think it, therefore, extremely clear that, whatever may be the sufficiency or insufficiency of the plea in the case at bar, the defendant is not bound by any estoppel.

We are next to consider whether the plea be a sufficient bar; as to which, several points have been made.

1. Whether the facts pleaded amount to payment. It is averred in the plea, that the interest which had accrued on the loan of a sum of money from the defendant to the lessor, equal in amount to the rent demanded, has been *retained*and *applied,*by the agreement of the parties, to the payment of the rent; and this, not being traversed, must be considered as a sufficient averment of payment. If it were not thus retained and applied, the plaintiff should have traversed the fact.

It may be in point here to notice the case of *Sturdy & Al.*vs. *Arnaud,*cited in the argument, which seems a parallel case with the present. The plaintiffs were the assignees of a bankrupt, to whom the defendant had given a bond to * secure an annuity, and before payment had become due, the defendant loaned him a sum of money; whereupon it was agreed that the defendant should retain the payments of the annuity, as they became due, until the loan Should be repaid. The action being on the bond, for the payments which had accrued after the bankruptcy, it was held, that the agreement to retain was a good plea, such agreement and retainer being considered as equivalent to a plea of *solvit ad diem.*

*2.*The second point made is, that payment, without an acquittal or discharge by deed, is insufficient. This objection was thrown out in the course of the argument, but probably was not much considered. None of the cases cited go to support it, and clearly it cannot be maintained. It is true that a contract under seal cannot be annulled, except by deed, upon the principle that such contract can only be dissolved “ *eo ligamine quo ligatur.”*But this principle is not applicable to cases of *payment,*or of *performance*of *32a covenant, or of *accord and satisfaction,*or of a *tender;*all of which are commonly proved by paroi evidence. Besides, the payment of rent does not operate as a dissolution of the contract; the lease still remains in full force as to future rents and other covenants.

3. The third and last objection to the sufficiency of the plea is, that payment of the rent to the lessor, after the assignment of the reversion, is no defence in an action by the assignee, although payment be made without notice of such assignment.

At common law, the assignment of a reversion, expectant on a term of years or for life, was incomplete without the attornment of the tenant. If he refused to attorn, he was not liable to the assignee for the rent. But this principle was found inconvenient, as the tenant might unreasonably refuse to attorn ; which was a great clog upon transfers. By the statute of 4 and 5 *Anne,*c. 16, assignments of reversions were made valid, without the attornment of the tenant; but provision was made that all' payment of * rents to the lessor made before notice to the tenant of the assignment, should be held good. Now, it is immaterial, as it respects the present objection, whether we adopt the doctrine of attornment, or the provision of the statute; but I have always understood that attornment was never considered necessary, under the provincial government, to complete the validity of an assignment. It was a doctrine of the old feudal law, and was not applicable to our tenures. But probably notice was required here, before the statute of *Anne,*as a substitute for attornment; or, if it were not so, as the *provision*of the statute is founded on a principle of universal equity, it must be supposed to have been adopted here, unless the contrary can be shown, which has not been attempted. On general principles, also, we should hold notice necessary in a case like the one at bar. For if the assignee of a reversion will lie by, and suffer the lessee to pay rent to the lessor as it falls due, he has no ground for complaint, although he may suffer by his neglect, *(a)*

It was said, and not controverted, in the argument, that the assignment to the plaintiff was by deed of *mortgage.*But as the form of the assignment does not appear by the pleadings, we can take no notice of that fact. Nor do we think it important; as we are satisfied, for the reasons already given, that the defendant’s plea in bar is sufficient.

*Replication adjudged had.*

(a)

*Fitzburg C M. Corp.*vs. *Melvin & Al.*post, 268. — *Keay*vs. *Goodwin,*15 *Mass Rep.*p. 1.