RENTS. EPITOME OF CASES. Sec. 799. Creation of liability to pay rent. An owner of land may maintain an action for the use and occupation against one whose building encroaches thereon. Beardsley v. Town of Nashville, 64 Ark. 240 (41 S. W. Rep. 853). A provision in a deed of standing timber requiring the payment of rent by the grantee after the expiration of a certain time, upon his acceptance of the deed, becomes binding upon him although he did not sign the instrument. Weaver v. Southern Oregon Co., 30 Or. 348 (48 Pac. Rep. 167). Where a father occupies lands which he has purchased and caused to be conveyed to his minor sons in such a manner as to operate as a present advancement, he will be held liable to account to them for the rents and profits of such land, although the statute (Sand. & H. Ark. Dig., § 3568) makes him their natural guardian. Bunn, C. J., dissenting. Rhea v. Bagley, 63 Ark. 374 (38 S. W. Rep. 1039; 36 L. R. A. 86). Ala. Code, § 2706, which provides that " persons holding possession under color of title in good faith are not responsible for damages or rent for more than one year before the commencement of the suit," is held not to apply to a mortgagee who has taken possession before foreclosure. Keith v. McLaughlin, 114 Ala. 60 (21 So. Rep. 483). One who enters into possession and occupies premises by the consent of the owner as the successor of his lessee and while so occupying pays rent at the rate stipulated in the lease during the term, and after the expiration of the term continues to so occupy and use the premises, he thereby becomes liable for the use and occupation of the premises, and the original lease is admissible to fix the amount of rent. Weaver v. Southern Oregon Co., 30 Or. 348 (48 Pac. Rep. 167). A husband does not become liable to his wife for rent on account of their joint occupancy of her property for a home. Trefethen v. Lynam, 90 Me. 376 (38 Atl. Rep. 335; 60 Am. St. Rep. 271; 38 L. R. A. 190). A lessee who has assigned his interest in the lease to his cotenant, cannot, by subsequently paying the rent to the end of the term and taking an assignment of the lease to himself from the lessor, recover on the lease from his cotenant, or a tenant, of his cotenant, the amount of rent so paid by him. Holman v. De Lin-River-Finlay Co., 30 Or. 428 (47 Pac. Rep. 708). Sec. 800. Pleadings and practice in actions for rent. An action can be maintained upon an absolute agreement to pay rent, where there is a demise, and the lessor is not in fault in preventing actual enjoyment, although the tenant has not taken possession of or used the demised premises. Union Pac. Ry. Co. v. Chicago, R. I. & P. Ry. Co., 164 Ill. 88 (45 N. E. Rep. 488). The Statute of Marlbridge (52 Hen. III, ch. 4) adopted in South Carolina in 1712, by 2 Stat. at Large 418, which gave a tenant the right of action for unreasonable distress for rent, is no longer in force in that state, and the landlord may now distrain all the tenant's property on the premises. Bender v. Ross, 51 S. C. 217 (27 S. E. Rep. 627). Attorney's fees cannot be recovered by a lessor in an action for rent, under a provision in the lease providing for their payment, where the lessee recovers on a counterclaim an amount greater than the amount due. Taylor v. Lehman, 17 Ind. App. 585 (46 N. E. Rep. 84). Ala. Code, § 2715, applied—sufficiency of particular complaint discussed. Burgess v. American Mortgage Co., 115 Ala. 468 (22 So. Rep. 282). S. C. Laws 1899, p. 81, gives a landlord the right to pay off prior mortgage liens on property otherwise subject to distress for rent, and subject the property to the payment of the same, as well as to the payment of amount due for rent. Sec. 801. under him, his title or Bartlett v. Robinson, Where a third party is Proof required in actions for rent-Burden of proof. In an action for rent it is sufficient to show a contract with the plaintiff and a holding right of possession being immaterial. 52 Neb. 715 (72 N. W. Rep. 1053). in possession of leased premises under the lessee, the law presumes that the lease has been assigned by the lessee to such third party, and, in a suit against him for rent, the burden is on him to explain the character of his possession; such a burden is also on his assignee in insolvency. This rule is not changed by the fact that the lease contains a condition of forfeiture in case of such an assignment by the lessee. Dickinson Co. v. Fitterling, 69 Minn. 162 (71 N. W. Rep. 1030). Where, in an action for rent against a tenant holding over, the plaintiff claims that the tenant is occupying under an express agreement for a new tenancy for a year, and the lessee claims. that his tenancy is by the month, the burden of proof is on the plaintiff. Mittwer v. Stremel, 69 Minn. 19 (71 N. W. Rep. 698). In an action of assumpsit on a lease the execution of which is proved, a defendant who claims that his signature was procured by fraud, has the burden of proof as to that issue. Bly v. Brady, 113 Mich. 176 (71 N. W. Rep 521). As to the conclusiveness of a receipt for "payment in full" as a defense to an action for rent, see Ramsdell v. Clark, 20 Mont. 103 (49 Pac. Rep. 591). For particular fact cases considering questions of evidence and instructions, in actions for rent, see Hirschfield v. Franks, 112 Mich. 448 (70 N. W. Rep. 894); Burgess v. American Mortg. Co., 115 Ala. 468 (22 So. Rep. 282). Sec. 802. Defenses in action for rent. Applying W. Va. Code, ch. 126, § 4, in an action for breach of cove nant to pay rent, it is held that the defendant must, in order to be able to show payment, plead the payment specially Arnold v. Cole, 42 W. Va. 663 (26 S. E. Rep. 312). A lessee who defends against an action for rent on the ground that the lessor did not furnish sufficient heat for the premises as agreed in his lease, has the burden of proof. Gatch v Garretson, 100 Ia. 252 (69 N. W. Rep. 550). It is no defense to an action for rent for the lessee to allege that he abandoned the premises on account of the failure of the water supply, where it appears that he inspected the premises and had full knowledge of the source of the supply of water before taking his lease which was not procured by any fraud on the part of the plaintiff. Lewis v. Clark, 86 Md. 327 (37 Atl. Rep. 1035). One who has taken possession and enjoyed the use, under a void lease, cannot defeat the payment of a note given for rent, on the ground of the invalidity of the lease Cherokee Strip Live-Stock Ass'n v. Cass Land & C. Co., 138 Mo. 394 (40 S. W. Rep. 107). To an action for rent upon a lease at will, it is no defense to show that defendant was prevented from terminating the lease by legal proceedings to which the plaintiff was not a party. Bartlett v. Robinson, 52 Neb. 715 (72 N.W. Rep. 1053). One who has accepted a lease and entered into possession, cannot defeat his lessor's action for rent by proof of a voluntary attornment to an adverse claimant of the premises whom the lessee alleges to be the true owner, it not being shown that he has been kept out of possession or evicted by the holder of the paramount title or that he had surrendered the lease. Nissen v. Turner, 50 Neb. 272 (69 N. W. Rep. 778); Moser v. Cole, 50 Neb. 636 (70 N. W. Rep. 275). Where the possession of a vendee's lessee has not been disturbed, he cannot defeat an action by the vendee to recover rent, by showing that such vendee was in default under his contract and that the vendor had the legal right to dispossess him by foreclosure or otherwise. Nearing v. Coop, 6 N. Dak. 345 (70 N. W. Rep. 1044). A party who is proceeded against in a state court by a receiver in a federal court for the payment of rents due may plead in compensation and extinguishment thereof a sum said receiver has previously collected in excess of what he was entitled to have received. Grant v. Buckner, 49 La. 668 (21 So. Rep. 580). Under Pa. Pub. Laws 1878, p. 205, in an action for ground rent against a grantee of real estate, it is a good defense for him to show that he has not, by agreement in writing or words in the deed of conveyance, assumed the personal liability for the rent. Easby v. Easby, 180 Pa. St. 429 (36 Atl. Rep. 923). Where a lessee pays rent monthly for several months without making any objection on account of the premises not being completed according to the terms of the lease, he waives any claim to a deduction on account of such noncompletion. Murphy v. Marshall, 179 Pa. St. 516 (36 Atl. Rep. 294). One who takes a lease of premises subject to a visible and permanent servitude or easement, is liable for the full rent although he was deprived of the benefit of a part of the premises for a portion of the time on account of repairs made by the owner of the easement. Friend v. Oil Well Supply Co., 179 Pa. St. 290 (36 Atl. Rep. 219). Where a contract of lease is entire, and is broken by the lessor in refusing to deliver possession of a portion of the premises described therein, said lessor is estopped from collecting any portion of the rent agreed upon after demand has been made upon him by the lessee for the possession of the remaining portion of said premises; and this, notwithstanding the latter may have retained the possession of a portion of said premises after such demand and refusal, unless complete performance of said contract has been waived by him. Penny v. Fellner, 6 Okla. 386 (50 Pac. Rep. 123). There Sec. 803. Counterclaims in actions for rent. is no inconsistency between an admission in an answer that defendant is indebted for rent, and a counterclaim for repairs made by the defendant for which the plaintiff agreed to pay him. Hausman v. Mulheran, 68 Minn. 48 (70 N. W. Rep. 866). In an action for rent a lessee may recover by counterclaim damages resulting from a breach of an implied covenant for quiet enjoyment. Hanley v. Banks, 6 Okla. 79 (51 Pac. Rep. 664). In an action to recover his share of the rents brought by one tenant in common against his cotenant having the renting of the property in charge, the latter may maintain a counterclaim for damages against the plaintiff, where he has wrongfully driven off the tenants and thereby reduced the rental. Dale v. Hall, 64 Ark. 221 (41 S. W. Rep. 761) Sec. 804. Miscellaneous notes. A mortgagee who purchases at a foreclosure sale had under his mortgage, becomes the owner of the premises and is not liable to account to a junior mortgagee for the rents and profits. Gault v. Equitable Trust Co., 100 Ky. 578 (38 S. W. Rep. 1065). A purchaser of real estate at a foreclosure sale occupied by a lessee, whose lease embraces in addition to it, certain personal property, title to which did not pass by the decree, is not entitled to recover the full amount of the rent stipulated in the lease, but only such amount as is represented by the value of the use of the real estate. Newton v. Speare Laundering Co., 19 R. I. 546 (37 Atl. Rep. 11). The assignment of rents of mortgaged property, to be received by the mortgagee and |