Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.
The question presented by this case, say the learned counsel for the appellants, is, “whether executors who have entered into and possessed a leasehold estate of which their testator was assignee, are liable for the rents accruing during the possession as assignees de bonis propriis."
Were this the only question, we would have no difficulty in deciding it in the affirmative, but the facts of the case present a somewhat different inquiry.
The conveyance by Smiley et al., although it employs words ordinarily used in a demise, and contains a reservation of rent and the right of re-entry upon covenants broken, is not an under-letting or sub-lease, but is considered in law as an assignment of their whole interest, as there remains in them no reversion of the estate; for it is one of the essentials of a lease, that it should contain a reversion in favor of the party from whom the grant or assurance proceeds.
If this position be correct, and we are satisfied it cannot be successfully controverted, then the instrument, which was possibly intended for a demise by the parties, in reality operated a conveyance of the entire estate of the lessees to Middleton, through whom, by sundry mesne conveyances, it afterwards returned to the grantor, and was merged in the fee and thereby extinguished. JSo action will lie against the executors, although it might have been otherwise, had there been no merger.
Judgment affirmed.