and paid for, belongs to Holderman v. Smith, 3 In Iowa it is held by a receive as rent a certain

is in the nature of an adventure, and the measure of damages for a breach thereof is not the value of the services rendered by the damaged party, but the value of his share of the crop. Bowers v. Graves & Vinton Co., 8 S. Dak. 385 (66 N. W. Rep. 931). Citing, Walker v. Fitts, 24 Pick. 191; Taylor v. Bradley, 39 N. Y. 129 (100 Am. Dec. 415). Where a farming lease provides that the tenant shall raise a certain kind of grain for which the landowner is to pay him a fixed price per bushel, the grain to be averaged and paid for on a certain day in the future, the grain, until averaged the tenant and is held at his risk. Kan. App. 423 (43 Pac. Rep. 272). divided court that a lessor who is to portion of the crop raised, to be delivered to him by his lessee, may, while such crop is still in the possession of the tenant and undivided, execute a valid mortgage on his interest which will give his mortgagee a right paramount to that of the creditors of the mortgagor under garnishment proceedings subsequent to the mortgage. Riddle v. Dow, 98 Ia. 7 (66 N. W. Rep. 1066; 32 L. R. A. 811). See opinions for extensive collation of authorities on both sides of the question. Where a tenant who is to pay as rent a certain portion of the harvested crop, is prevented from doing so by his landlord wrongfully taking possession and removing the crop, he is entitled to recover the value of his share of the crop without any deduction for the expense of harvesting his landlord's share. Foley v. Southwestern Land Co., 94 Wis. 329 (68 N. W. Rep. 994). In an action by a lessee of farm lands on the shares against his lessor for failure to give possession, it is proper, in ascertaining the amount of damages, to receive evidence of the land's average yield of the various crops contemplated, and the cost of their production and marketing, together with their value. Chew v. Lucas, 15 Ind. App. 595 (43 N. E. Rep. 235). This case is approved by Loufer v. Stottlemyer, 16 Ind. App. 221 (44 N. E. Rep. 1008). For construction of particular agreement for farming on the shares, see Williams v. Rogers, 110 Mich. 418 (68 N. W. Rep. 240).

Sec. 447. Landlord's lien. A landlord has no common law lien upon the property of his tenant for rent.

Powell v. Daily, 163 I11. 646 (45 N. E. Rep. 414). A landlord having a lien upon property may for the purpose of enforcing his claim recover possession of it when about to be sold by the tenant or which has been so sold, although there was no intention to defeat the landlord's claim. Leonard v. Brockman, 46 S. C. 128 (24 S. E. Rep. 96). Under Utah Sess. Laws 1894, p 123, providing that a lessor "shall have a lien for rent due upon all the property of the lessee not exempt from execution, as long as the lessee shall occupy the leased premises, and for thirty days thereafter", it is held that where a lessor fails to institute proceedings to enforce his lien for more than thirty days after his lessee has ceased to occupy the premises, he thereby loses his lien and his claim possesses no superiority over that of any other person. In re Stone's Estate, 14 Utah 205 (46 Pac. Rep. 1101). A landlord's lien is subject to recorded liens upon crops existing before the relation of land and tenant became established. Mecklin v. Deming, 111 Ala. 159 (20 So. Rep. 507). Ala. Code, § 3056, construed and applied-priority of landlord's lien upon crops. Waite v. Corbin, 109 Ala. 154 (19 So. Rep. 505). Where a statute (Ill. Rev. Stat., ch. 80, § 31) gives a landlord a lien for rent on the crops of his tenant for a definite period after the expiration of the lease, a lessor who becomes administrator of his deceased tenant and files and has allowed his claim for rent within such period does not lose his priority of lien by his claim being classed when allowed in the seventh class of claims against the estate. Lillard v. Noble, 159 Ill. 311 (42 N. E. Rep. 844). An oral lease obligating the lessee to pay a fixed cash rental, and providing for the storage in a warehouse of the crops raised, in the name of the lessor, who should retain title thereto until the rent was paid, was held to give the lessor merely a lien on the crops for his rent and not title thereto as against the lessee's creditors. Stockton Sav. & L. Soc. v. Purvis, 112 Cal. 236 (44 Pac. Rep. 561; 53 Am. St. Rep. 210), reversing, Stockton S. & L. Soc. v. Purvis, Cal. (42 Pac. Rep. 441 epitomized in Vol. IV, § 425, p. 442). Ala. Code, § 3069, applied-landlord's lien upon goods and furniture of tenant. Glass v. Tisdale, 106 Ala. 581 (19 So. Rep. 70); Couch v. Davidson, 109 Ala. 313 (19

So. Rep. 507); Andrews Mfg. Co. v. Porter, 112 Ala. 381 (20 So. Rep. 475).

Sec. 448. Landlord's lien-Liability of vendee of crops. A vendee of crops subject to a landlord's lien is liable to him for the amount of such lien, although he purchases in the open market and without knowledge of the tenancy. Frorer v. Hammer, 99 Ia. 48 (68 N. W. Rep. 564). Construing Kan. Gen. Stats., 1889, par. 3633, providing that "any rent due for farming land shall be a lien on the crop growing or made on the premises; such lien may be enforced by action and attachment therein as hereinafter provided," it is held that the lien given to the landlord by this statute exists independently of a seizure upon attachment or other process; that a written or recorded lease is not necessary to its creation; and unless it is lost or waived it is paramount to the rights of one purchasing the crops while in possession of the tenant upon the lease premises. Scully v. Porter, 57 Kan. 322 (46 Pac. Rep. 313).

Sec. 449. Agricultural lien for advancements. non-resident commission merchant who has made advances upon account to a planter and who has received and sold in good faith cotton shipped in the name of the planter, and for his account, is not answerable for the value of the cotton so received, sold and credited on the planter's account, to a person having a landlord's lien on such cotton. Chism v. Thomson, 73 Miss. 410 (19 So. Rep. 210). N. C. Code, § 1799, construed and applied-agricultural lien for advancements. Meekins v. Walker, 119 N. C. 46 (25 S. E. Rep. 706). S. C. Rev. Stat., §§ 2517, 2518, construed and applied-practice in actions to enforce an agricultural lien. Kennedy v. Dunbar, 46 S. C. 517 (24 S. E. Rep. 383). Priority of agricultural lien and for what advances it can be enforced. McCaslan v. Nance, 46 S. C. 568 (24 S. E. Rep. 812). Particular facts held not to constitute an assignment of a lien for advances. Rawls v. Moye, 98 Ga. 564 (25 S. E. Rep. 582). As to subrogating another to a landlord's lien for advancements, see Gerson v. Norman, 111 Ala. 433 (20 So. Rep. 453).

Sec. 450. Rents. Pendente lite purchasers occupying the estate when the record charges their grantor with fraud, in fact, in the acquisition of the property, are chargeable with rents and profits. While a grantor in a deed of trust, or mortgagor, or judgment debtor in possession of land, or his alienee innocent of fraud, in fact, is not chargeable with rents and profits during the pendency of the suit to subject the land to the debt, yet an alienee of such debtor chargeable with fraud in fact is chargeable with rents and profits. Stout v. Philippi Mfg & Mer. Co., 41 W. Va. 339 (23 S. E. Rep. 571; 56 Am. St. Rep. 843). A grantee in a conveyance which is set aside because made in violation of an insolvency statute who took the conveyance in good faith is not charged with the annual rental value of the property while in his possession, but merely with the rents and profits which he has received therefrom. McGahan v. Crawford, 47 S. C. 566 (25 S. E. Rep. 123). Where in a decree cancelling a lease it is adjudged that one holding under a lessee therein has a lien upon the premises for the excess of the value of his improvements over the rent with which he is charged, and the decree permits him to hold possession until the amount due him is paid, or until the rental value for the period of such occupancy is equal to the amount due him, he is, after such decree, chargeable with the rental value of the property including the improvements he has placed thereon. State to use of Garland Co. v. Passmore, 61 Ark. 363 (33 S. W. Rep. 214) A mortgagee in possession before foreclosure is liable for the net rents and profits which he has received, or which he might have received by the exercise of reasonable White v. Atlas Lumber Co., 49 Neb. 82 (68 N. W. Rep. 359). Where, on account of unexpected depression in his business, a lessee of a hotel became unable to pay the rent stipulated and was about to abandon the premises to the injury of the lessor, an agreement by the latter to make a reduction in the rent if the lessee would continue to occupy is based upon a sufficient consideration. Ten Eyck v. Sleeper, 65 Minn. 413 (67 N. W. Rep. 1026). When a written contract of lease of real estate, rented for a period of eighteen months, with monthly payments of rent in advance, expressly provides that, upon the failure of the tenant to pay rent in advance on the

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first day of each month, the landlord may distrain for the rent due, or declare the lease at an end and retake possession, the tenant may upon receiving notice from the landlord to remove from the premises in thirty days from the date of the notice, if rents are not paid promptly in advance, and failing to pay the rent due on the first of the following month, vacate the premises, and consider the lease ended, without being liable to pay rent after the month for which the default was made. King v. Davies, 2 Kan. App. 634 (42 Pac. Rep. 942). When a lessor declares a forfeiture and makes a reentry, upon which acts the lessee relies to his injury, he is estopped to recover rent accruing subsequently. Brigham Young Trust Co. v. Wagener, 13 Utah 236 (44 Pac. Rep. 1030), overruling Brigham Young Trust Co. v. Wagener, 12 Utah 764 (40 Pac. Rep. 764), epitomized in Vol. IV, § 427, p. 447. A husband who collects the rents of the separate estate of his wife is liable to her therefor. Chorn v. Chorn's Adm'x, 98 Ky. 627 (33 S. W. Rep. 1107). Pa. Act, Apr. 27, 1855 (P. L. 369) applied-extinguishment of ground rent by lapse of time without demand. Barber v. Lefavour, 176 Pa. St. 331 (35 Atl. Rep. 202; 53 Am. St. Rep. 672). Ala. Code, § 3059, applied-assignment of rent claims. Wells v. Cody, 112 Ala. 278 (20 So. Rep. 381).

Sec. 451. Actions to recover rent. In order to sustain an action for use and occupation the relation of landlord and tenant must exist. Burdin v. Ordway, 88 Me. 375 (34 Atl. Rep. 175). In New York it is held by a divided court that an action to recover rent may be maintained by a corporation lessor for the use and occupation of its property under a lease by it which is ultra vires. Bath Gaslight Co. v. Claffy, 151 N. Y. 24 (45 N. E. Rep. 390; 36 L. R. A. 664). See opinion for exhaustive collation of authorities. Under a complaint by a landlord to recover rent from an assignee of a written lease, parol proof of an oral agreement by the defendant to pay rent is a variance. Jacobs v. First Nat. Bank, 15 Wash. 358 (46 Pac. Rep. 396). In an action to recover rent upon an oral lease from plaintiff to defendant, it was properly ruled to be an immaterial inquiry whether or not defendant had subleased the premises to a third party for