The statute is declaratory of the rule. Section 1,464 of the civil code reads:

"A covenant for the addition of some new thing to real property, or for the direct benefit of some part of the property not then in existence or annexed thereto, when contained in a grant of an estate in such property, and made by the covenantor expressly for his assigns, or to the assigns of the covenantee, runs with the land so far only as the assigns thus mentioned are concerned." In such case the assignee is liable only for the breaches of the covenant occurring after he has acquired the estate, and before he has parted with it, or ceased to enjoy its benefits: C. C., 1,466.

It is urged by appellants that defendant, Richardson, is not bound by the covenants of the sub-lease because he came in under an elder and superior estate.

In Whitten v. Peacock, 2 Bing., N. C., 412, it was held that where lessor had only an equity, assignee of the lessor did not take the benefit of certain covenants of the lease. At common law, no such right passed to the assignee of the reversion, and the English statute, 32 H. 8. C., 34, which enabled the assignee of the reversion to sue on contracts made by his predecessor, conferred that right only on the assignees of the legal title. See argument of Whightman, p. 419. But the term of Dore was a legal estate, and, as we have seen, section 1,464 of the civil code applies to grants of any es

tate.

By section 823, of the same code, it is provided: "Whatever remedies the lessee of any real property may have against his immediate lessor, for the breach of any agreement in the lease, he may have against the assigns of the lessor," etc.

In Chaworth v. Phillips, Moore, 876, fuit resolve, que si un lessee pur 20 ans fait lease pur 10 ans sur condition destre void si 10l. ne soit pay al certaine jour, et puis le lessee pur 20 ans surrender al cestuy en reversion, que cestuy en reversion ne prendra benefit del condition, quia il est eins dun auter estate paramount.

It may be conceded that by our law, the merger of the term of the original lessee in the estate of his lessor, would not render the latter liable on the covenants of the under-lease. There is no privity of estate or contract between an original lessor and a subtenant, and such privity would not be created merely by the surrender of the original tenant-a matter between him and his lessor. A tenant may surrender his estate to his landlord, but if he have, since its commencement, created some minor interest out of it, or have made an under-lease, he cannot, by surrendering, destroy the charge, or affect the estate of the under-lessee: 1 Wash. Real Property, 360, and cases cited in note. Although the tenant cannot prejudice the interest of the under-lessee, yet he will lose the rent he has reserved upon the under-lease; for the rent is incident to the reversion; nor can the surrenderee have it, for though the reversion to which it was incident has been conveyed to him, yet as soon as it was so conveyed, it merged in the greater reversion; so that the consequence is, that, neither the surrenderor nor the surrenderee

being entitled to the rent, the under-lessee holds without payment of any rent at all, excepting where the contrary has been expressly provided by statute. In England it is now provided by statute: 8 and 9 Vic. C. 106, S. 9; that when the reversion expectant on a lease of any tenements or hereditaments, etc., is surrendered or merges, the estate which for the time being confers, as against the tenant under the lease, the next vested right to the premises, is to be deemed the reversion expectant on the lease, to the extent and for the purpose of preserving such incidents to, and obligations on, the reversion as, but for the surrender and merger, would have subsisted: Smith Land and T., 231-32, and note. We know of no provision of the Icodes of this state which has the effect of the statute referred to above.

But here defendant Richardson took a formal assignment of the reversionary interest of his lessee, and also an assignment of the sub-lease and of the rights of Dore-the assignee of the original lessee-thereunder. The assignment of the estate of the original lessee to Richardson might, as between the parties to that assignment, be held to be a surrender, and a drowning or extinguishment of the original lease. But the court below found that Richardson (in the name of Lean) claimed the benefits of the under-lease, receiving and collecting from plaintiff the rents therein reserved. Under these circumstances, the court was justified in finding that Richardson came in as assignee of the reversion of plaintiff's lessor, and not as owner of the fee. There was no merger, because he elected to keep the two estates separate. Claiming the benefits of Dore's contract, he is estopped from denying that he has succeeded to his responsibilities.

It is contended the judgment should be reversed, because appellants were taken by surprise at the trial; that in the prayer of plaintiff's complaint he asks that appraisers be appointed to estimate the value of the building, but the court permitted witnesses to testify to the value. There is a prayer for general relief. When evidence of the value of the building was offered, the objection was taken that such evidence was immaterial. The defendants did not ask for a continuance. The evidence was admissible under the averments of the complaint, and certainly was material. If counsel was misled by the prayer (and this can be said to be surprise) he could, so far as appears, have relieved himself of the consequences by an application for such a postponement as would have enabled him to secure the attendance of witnesses to the matter of value. Defendants were not, therefore, entitled to a new trial on the ground of surprise: Schellhous v. Ball, 29 Cal., 605.

Judgment and order affirmed.

MCKEE, J., and Ross, J., concurred.

man.

A few moments after midnight last Sunday morning, Feb. 15, 1885, Professor John Norton Pomeroy died. What his loss means those in the East and in this city, who have had the benefit of his teachings, and the many who have known him through his writings, can understand. But only they who have had the privilege of his acquaintance can fully realize how loyal was his friendship, how great, yet how simple was the We care not to review his works. What he has written is known to every lawyer; his books will preserve his name forever in the memory of a profession whose labors his industry and ability have lightened. What he has done for the student of the law, they will testify who have drawn their love for their calling from his example of learning and of high character. It is not so much to add our appreciation for what Professor Pomeroy has done for the law in this country, as to give expression to our regard, to our admiration for his private worth. He was not only a great lawyer, he was a scholar. All the walks of literature knew him, and in his conversation he could lead through all the fields of knowledge. But above and beyond all this-more than his fame as a jurist, more than his grace as a scholar-it was his life that did him the greatest honor. Unselfish, he gave his strength and his powers to the helping of others; to the world he gave the ability with which he was endowed; to his friends a loyalty that never can be surpassed, and to his family a devotion as true as it was beautiful. He was earnest, he was genuine, he was modest. He was unswerving in his fidelity to principle, and he died as he had lived, a sincere Christian.

THE PUBLISHERS.

WEST COAST REPORTER.

WHOLE NO. 61.

FEBRUARY 26, 1885.

VOL. V. No. 9.

COL

CIRCUIT COURT, DISTRICT OF COLORADO.

FRANK ET AL. V. DENVER AND RIO GRANDE RAILWAY CO., ET al.

Filed February 12, 1885.

CHATTEL MORTGAGE-DEFECTIVE ACKNOWLEDGMENT AND RECO RDING. - -A chattel mortgage on the rolling stock of a railroad company situated in Colorado, which fails to comply with the requirements of the statute in respect to acknowledgment and recording, does not create a lien on such property as against creditors of the company, proceeding by attachment and execution, or purchasers from the company in good faith.

MORTGAGE OF AFTER-ACQUIRED PROPERTY--RIGHTS OF MORTGAGEE. --A mortgage of property to be after-acquired by the mortgagor only attaches as a lien on such property in the condition in which it comes into the mortgagor's hands. If such property is subject to mortgages or other liens for the purchase price, the general mortgage does not displace them, although they may be junior to it in point of time.

INSOLVENT ESTATE - RECEIVER-PRECEDENCE AMONG CREDITORS.-Creditors of an insolvent estate in the hands of a receiver are entitled to payment in the order and precedence established by the merits of their claims, and not by legal remedies for which they may have contracted or which may be given them by law.

MOTION to vacate or modify an order directing the receiver to pay car trusts. The opinion states the facts.

E. S. Dixon, for the plaintiffs.

Hugh Butler, L. K. Bass, and C. J. Hughes, for the defendants. E. O. Wolcott, for the receiver.

HALLETT, J. June 6, 1878, the Philadelphia Trust Safe Deposit and Insurance Company entered into a contract with the Denver and Rio Grande Railway Company "to lease to and place upon the railroad" of the latter company certain cars and locomotives which should be delivered to the first named company for that purpose by "The Philidelphia and Colorado Equipment Trust." Defendant company was to pay "for every car and locomotive an annual rent equivalent to the one-sixth of the original cost thereof," and the lease to continue for ten years, when the cars and locomotives would become the property of the railway company. By this method of computation, it is said that upon completing the contract the railway company would pay the cost of the rolling stock and eight per cent. interest on deferred payments. Under this agreement, cars and locomotives of the value of three hundred and forty-five thousand five hundred dollars were delivered to the railway company, of which two hundred and seventeen thousand dollars has been paid, and interest and cost of trust, amounting to one hundred and twenty-three thousand three hundred and ninety-six dollars and twenty cents.