Riley v. Louisville, Lexington & Cincinnati Railroad , 1872 Ky. LEXIS 493 ( 1872 )

Opinion by

Judge Lindsay:

There was no privity of contract between the appellants as assignees of the lease made tO' Wrede and others; hence no recovery can be had in this action upon the contract itself. The appellee, if bound to pay the stipulated rent, is bound because of priority of estate. The covenant to pay the agreed rent is a covenant that runs with the lands, and attached to and becomes binding upon appellee in case it assumed possession of the leased premises. Possession is the foundation of assignee’s liability to the lessor. (Taylor on Landlord and Tenant, Sections 444 and 449.) This doctrine has been recognized by the court in the case of Trabue v. Adams, 8 Bush 74.

The facts as well as the law of the case were submitted to the court, and its judgment will be disturbed for no less reason than would authorize the setting aside of a verdict of a. jury.

The evidence does not show an actual possession of the leased premises, by the railroad company, and it is doubtful whether or not the notice to Miller to surrender to Wrede, as tenant of the company, had the effect of putting it constructively in possession; and it not being shown that Dudley had authority, either express or implied, to give such notice in the name of the appellee, it may well be doubted whether constructive possession would be sufficient to make the company responsible for rent. The circuit judge held that there was no such possession upon the part of appellee shown as would authorize a judgment against it for the rents in arrears, and his finding is not in our opinion palpably against the weight of the testimony. His judgment must therefore be affirmed.