#### ELLEN O’DONNELL, Respondent, *v.*ROBERT McINTYRE, Appellant.

*Attornment by a tenant to a stranger*— when *void as to the landlord*— 1 *S. 8.,*744, *see.*3.

The plaintiff, in 1880, leased a house belonging to her to one Bates. In 1880 the premises were sold, and in 1883 were conveyed, to the defendant for non-payment of taxes, and in February, 1883, his title thereto was perfected. In April, 1883, the defendant went to the premises, notified Bates, the tenant, of his, defendant’s,- title, and demanded possession of the premises, whereupon the tenant delivered to him the keys of the house and agreed to become the defendant’s tenant and pay him rent therefor.

Upon the trial of this action, brought to recover damages for an assault and battery committed by the defendant upon the plaintiff on the said premises, the question as to which party was in possession arose.

*Held,*that the attornment of the tenant to the defendant was void, and that the plaintiff’s possession was not in any way affected thereby.

*624Appeal by the defendant from a judgment, entered on a verdict rendered at tbe Monroe Circuit, and from an order denying a. motion for a new trial made upon the minutes of the justice before whom the action was tried.

The action was brought to recover damages for an assault and battery. Both parties claimed possession of a house in the city of Rochester. The alleged assault arose from an effort, and force used, to eject the plaintiff from the house. The plaintiff recovered $1,000.

*J. A. Stull,*for the appellant.

*John B. Fanning,*for the respondent.

Bradley, J.:

There is evidence tending to prove, and it was assumed at the trial, that the plaintiff, having title to the house and lot, leased the premises to one Bates, who went into possession as her tenant and paid rent to her; that afterwards, in August, 1S80, they were sold for taxes assessed to one Mary Horrigan; that in August, 1882, a deed pursuant to such sale was made to the defendant in terms conveying the premises to him, and that his title'under such conveyance was perfected in February, 1883, as provided by Laws' of 1877 (chap. 104; Laws of 1880, chap. 127). On 2d Ajiril, 1883, the defendant went to the premises, advised the tenant of the deed and demanded the possession of him, made arrangement with the latter to deliver to the defendant the 'keys of the house, and that the tenant should become his tenant, and pay him the rent thereafter.

The defendant having taken away some of the keys, the plaintiff went to the house on the 5th April with a locksmith to put new locks on the doors and went into the house, when the defendant came there and endeavored by force to remove the plaintiff from the house, but did not succeed. The evidence on her part tended to prove that the defendant used much force in his attack upon the plaintiff to remove her on her refusal to leave the house, and, violently struck and kicked her, and that her injuries received were serious; while his testimony was quite different in respect to the extent of force used.

The question of possession was an important one. If the *625defendant did not have tbe actual possession of tbe premises be was not justified in tbe application of any force to remove the plaintiff from tbe bouse. Tbe trial court held that be did not have possession of tbe premises, that tbe cause of action was established and that tbe question was one of amount of damages only;

On tbe part of the defense it is contended that tbe defendant having tbe title to tbe premises could, and by tbe arrangement with tbe tenant did effectually obtain tbe attornment of tbe latter to him and tbe relation of landlord and tenant was accomplished, and that such relation between tbe plaintiff and the tenant was terminated. And as a consequence tbe plaintiff was a trespasser and tbe defendant had the right to use tbe requisite force to remove her from tbe house on her refusal to leave it. And thus is presented tbe main question in this case.

It was at the trial and is here assumed that tbe defendant had tbe legal title by virtue of tbe tax deed. But that did not enable him and tbe tenant of tbe plaintiff, without tbe consent of tbe latter, by mere agreement between them to that effect during tbe term, to produce attornment of the tenant to him and take from her tbe relation of landlord.

The matter of attornment had its origin in tbe feudal system, and is as old as tbe laws regulating tenure of real property. And tbe restriction was alike on tbe landlord and tbe tenant so that neither without the consent of tbe other was permitted to substitute another in his place by grant or assignment of the reversion or term. That was founded in the system, and for the reason that tbe obligation of tbe lord and vassal was that of protection and fealty and tbe relation was in some degree personal. (2 Bl. Com., 57, 72, 288.) Tbe necessity for consent of tbe tenant (which was called attornment) to tbe conveyance of the reversion and to vest in the grantee the rights of tbe landlord in respect .to tbe lease and term was wholly done away by statute (4 Anne C., 16, § 9) which has been made tbe law of this State. (1 B. S., 789, § 146 ; *Moffatt*v. Smith, 4 N. Y., 126.) So that there is no restriction upon tbe right to pass tbe reversion and all such rights by grant to another.

But attornment by a tenant to a stranger is absolutely void and cannot affect the possession of bis landlord unless made with bis consent or pursuant to, or in consequence of, a judgment at law, or *626the order or decree of a court of equity, or to a mortgagee after the mortgage has become forfeited. (1 R. S., 744, §3.)

The defendant was a stranger within the meaning of the statute. The title which he asserted, and had, was hostile to that which the plaintiff had when the tenancy was created. The case is different when the estate of the landlord is a limited one and terminates after the commencement of the term of the tenant, or if the landlord’s estate or title has been extinguished or transferred by sale pursuant to decree or legal process; then the rights of the latter and his relation to the tenant for all practical purposes pass to the successor to the estate, or to the owner of the reversion thus acquired. *(Jackson*v. *Rowland,*6 Wend., 666-670; *Jackson*v. Davis, 5 Cow., 124-135; *Niles*v. *Ransford,*1 Mich., 338; 51 Am. Dec., 95; *Hoag v. Hoag,*35 N. Y., 471.)

And the tenant may become the purchaser of the reversion at a judicial or other sale, and so acquire the rights of his landlord and relieve himself from liabilty as tenant to the latter. *(Nellis*v. *Lathrop,*22 Wend., 121; *Elliott*v. *Smith,*23 Penn. St., 131; *Murrell*v. *Roberts,*11 Ired. Law R., 424; 53 Am. Dec., 419; *Camley*v. *Stanfield,*10 Tex., 546; 60 Am. Dec., 219; *Hetzel*v. *Barber,*69 N. Y., 1.)

But while his relation of tenant, and possession as such continues, he cannot avail himself of an outstanding title (which he may purchase) to dis23ute the title of his landlord, nor can he then effectually attorn to the person having an outstanding title in hostility to that of his landlord. *(Bailey*v. *Moore,*21 Ill., 165; *Lawrence*v. *Brown,*5 N. Y., 395-405; *Kenada*v. *Gardner,*3 Barb., 589.) He must first surrender up the premises to his landlord before assuming an attitude of hostility to the title or claim of title of the latter. *(Towne*v. *Butterfield,*97 Mass., 105; *Miller*v. *Lang,*99 id., 13; *Jackson*v. *Harper,*5 Wend., 246; *Jackson*v. *Walker*7 Cow., 636; *George*v. *Putney,*4 Cush., 355.)

There is, however, nothing in the way of the purchase of and taking title to an outstanding title by the tenant, which is all that was held in *Senior*v. *Marcinkowiski*(1 How. [N. S.], 331). The arrangement made with the tenant to treat the defendant as his landlord having been made without the knowledge or consent of the plaintiff, will be deemed collusive as against her and can afford no *627right to tbe defendant. *(Stewart*v. *Roderick,*4 *Watts &*Serg., 188; 39 Am. Dec., 71.)

Tbe tenant continued in tbe possession np to and at tbe time of tbe occurrence in question, and tbe defendant had no possession in fact at that time. And tbe ground upon which be asserted it, was tbe arrangement by which be claimed tbe relation between tbe plaintiff and tbe tenant was terminated, and shifted so as to produce tbe relation of landlord and tenant between him and tbe latter. It may be assumed that this attempt was made during an existing term •of tenancy.

There seems to be no support for tbe contention that tbe defendant was in tbe actual possession of tbe bouse at tbe time of the alleged assault. And assuming that be then bad tbe right to possession by virtue of bis deed resulting from tbe sale for taxes, be was not by it given any right whatever to forcibly eject tbe plaintiff from tbe premises and in that manner take possession of them. *(Parsons*v. Brown, 15 Barb., 590; *Bliss*v. Johnson, 73 N. Y., 529; *McMillan v. Cronin,*75 id., 474.)

There being no question but that some force was used by tbe •defendant, in bis effort to. remove tbe plaintiff, tbe cause of action was made out, and tbe only inquiry that remained for the jury was us to the amount of tbe recovery which should be given to tbe plaintiff. In respect to tbe character of tbe assault and of tbe injuries received and tbe extent of them, the testimony was conflicting and presented for tbe jury tbe question of credibibty of witnesses which it was peculiarly within their province to determine.

We see no occasion to disturb tbe verdict on tbe merits, and none •of the exceptions seem to have been well taken. Tbe judgment and order should be affirmed.

Smtth, P. J;, and BarKeb, J., concurred.

Judgment and order, affirmed.