428; 32 Am. Dec. 78; Carpenter v. Parker, 3 Com. B., N. S., 243.) George Hyde is completely stripped of his title by a deed with a condition subsequent. (2 Devlin on Deeds, secs. 958, 959; Memphis etc. R. R. Co. v. Neighbors, 51 Miss. 412; Spect v. Gregg, 51 Cal. 198; Shattuck v. Hastings, 99 Mass. 23; Warvelle on Vendors, 444; Vail v. Long Island etc. R. R. Co., 106 N. Y. 283; 60 Am. Rep. 449; Alemany v. Daly, 36 Cal. 90; Sheppard v. Thomas, 26 Ark. 617; Abbott v. Osgood, 58 Me. 73; Webster v. Cooper, 14 How. 501; Guild v. Richards, 82 Mass. 309; Stone v. Ellis, 9 Cush. 95; Spofford v. True, 33 Me. 283; 54 Am. Dec. 621.)

MCFARLAND, J.-This is an action brought by the plaintiffs, Jeffers & Wright, to recover certain moneys alleged to be due upon an assignment by them of a certain leasehold interest to the defendant Easton, Eldridge & Co., a corporation. Certain individual defendants are also sued. Judgment went for defendants, and plaintiffs appeal from the judgment and from an order denying a new trial.

In 1886 one George Hyde executed to the plaintiffs, Jeffers & Wright, a written lease of certain real property in the city of San Francisco, for a term of eight years and six months, at a monthly rental of $175. Plaintiffs went into possession of the leased premises; and in 1889 they procured from Hyde an extension of the term of the lease until January 1, 1896. On February 1, 1890, the plaintiffs and the said corporation executed a written instrument by which the plaintiffs sold, assigned, and transferred said leasehold interest to said corporation; and said corporation promised to pay to Hyde the said rent of $175 per month, and also to pay plaintiffs, in consideration of said assignment, the sum of $275 per month until the said first day of January, 1896. Plaintiffs delivered possession of the said premises to said defendant corporation; and the latter paid the $175 to Hyde and the said $275 to plaintiffs up to and including the month of August, 1890, but since

then have refused to pay plaintiffs any money whatever. This action is brought to recover said two sums of money for each of the seven months, commencing with September, 1890, and ending with March, 1891.

The lessor, George Hyde, died in August, 1890; and soon afterward his widow, Ellen J. Hyde, and certain of her children, informed the said corporation that at the time of the execution of said lease, and of said extension thereof, they were the owners in fee of said leased premises, and ever since had been such owners; and that at said times the said George Hyde had no right, title, or interest to or in said premises, and had no right or authority to make said lease or said extension thereof; and they demanded that the corporation give up possession to them, and threatened to put the said corporation out of possession, and employed an attorney to do so. This was the first intimation which said defendant had that said leasehold was not perfectly valid as it had been represented to be by plaintiffs. The defendant immediately consulted its attorneys, who, after investigation, advised it that the title to the leasehold interest was worthless, and that an action by Mrs. Hyde and her children for possession, or for use and occupation of the premises, could not be successfully defended. There was then considerable negotiation between the defendant and the plaintiffs about the defect in the title, which appears to have resulted in nothing definite. Defendant then told Mrs. Hyde to take possession and claims that she did it; but defendant did not remove its effects from the premises and Mrs. Hyde did not take actual possession; but, without going out of actual possession, the defendant took a lease of the premises from Mrs. Hyde and said children, and has since remained in possession as their tenants.

The court found that on or about June 30, 1866, the said George Hyde was seised in fee and possessed of the said leased premises; and on that day executed a certain written instrument marked "Exhibit A," which was recorded August 9, 1866. By this instrument the said

leased premises, together with a large amount of other property, was granted and conveyed to Ellen J. Hyde for her life, with remainder to certain children of the parties therein expressly named. There is also a provision in the conveyance that the said Ellen shall use the rents and profits of the whole property conveyed for the support and maintenance of herself, and also for the maintenance and education of said children; and the latter are therefore named in the findings and evidence as "beneficiaries." The court also found "that Ellen J. Hyde and the beneficiaries in the instrument set forth as 'Exhibit A' in the amended answer were the only persons who, at any time since 1866, held any legal or equitable title to the premises in said instrument described, or any part thereof; and that George Hyde at no time since 1866 was the owner of the whole or any part thereof, or was entitled to make and execute said lease and the extension thereof." The court also found that at the time of the said assignment the plaintiffs represented to said corporation that said George Hyde was the owner of said premises, and that plaintiffs were entitled under said lease to the possession of said premises until January 1, 1896; and that by reason of said representations said defendant was induced to take said assignment in ignorance of the true state of the title. As to the findings above stated it is sufficient to say that they are supported by the evidence. The court held that the consideration for the promise of the said defendant to pay said sums of money monthly for said assignment had failed; and the question to be determined is whether or not, under the circumstances above stated, the failure of the title of plaintiffs to the leasehold attempted to be assigned constitutes a valid defense to this action. The question must be answered in the affirmative.

Counsel for appellants argued the case mostly upon. the theory that the relation of landlord and tenant existed between plaintiffs and the corporation respondent.

But there was no such relation. The assignment

was of the whole term; there was no underletting-no interest left in the assignors; and the relation was simply that of seller and purchaser. (Smiley v. Van Winkle, 6 Cal. 605; Wood on Landlord and Tenant, sec. 65, p. 145.)

Neither do the rules which govern conveyances of real property apply to assignments of estates for years. A term for years is only personal property-a chattel real. "An estate for life, even if it be per auter vie, is a freehold; but an estate for a thousand years is only a chattel, and reckoned part of the personal estate." (2 Blackstone's Commentaries, 143, 385-87.) "All leases for years are held by law to be of less value-perhaps it would be more proper to say of less dignity— than estates for life; estates for life being freeholds, and for years but chattels, and regarded as part of the personal estate, and cast upon the executor." (1 Wood on Landlord and Tenant, 143; see, also, sec. 73, p. 149.) Under the common-law leasehold estates of the wife went to the hsuband as personal property. (Wood on Landlord and Tenant, 223.) In the revised statutes of New York there was a provision that "no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special provisions or not"; and the court of appeals of that state held that the language did not include a term for years because it is not real estate, and that in a grant of such term there is an implied covenant of quiet enjoyment not only against the grantor, but against others claiming by lawful title. (Mayor etc. v. Mabie, 13 N. Y. 151; 64 Am. Dec. 538.) The court there say: "Terms for years fall within the definition of personal property. They go to the executors like other chattels; and, although they are denominated chattels real to distinguish them from mere movables, they are not, when speaking with legal accuracy, considered real estate." The common law upon the subject has not been changed by our statutes. The provision of section 1113 of the Civil Code, that only certain enumerated covenants shall be implied in

transfers of property, is expressly limited to a conveyance by which "an estate of inheritance or fee simple is to be passed"; and by section 765 the common-law distinction between freehold estates and estates for years is followed, and it is declared that "estates for years are chattels real." The same distinction is to be found in section 14, and in sections 657 to 663 of the same code. There is a marked difference between things real and an interest or estate in things real. "The nature of the thing itself, therefore, does not determine the character of any particular estate that may exist in it, whether personal or real, but the extent and duration of the estate." (2 Cooley's Blackstone, 15, note 1.)

An assignment of a term for years is, therefore, governed generally by the rules applicable to the sale of personal property; and, on such sale, while as to the quality of the thing sold caveat emptor is the general rule, the seller impliedly warrants the title. (Civ. Code, 1765; 2 Blackstone's Commentaries, 451; Benjamin on Sales, 631; 1 Parsons on Contracts, 8th ed., 573, et seq.) And the rule does not depend upon the knowledge, or want of knowledge, of the vendor as to the real state of the title, or upon deceit or fraud practiced by him. Parsons correctly states the rule as follows: "In this country it is now well settled by adjudications in many of the states that the seller of a chattel, if in the possession, warrants by implication that it is his own, and is answerable to the purchaser of it if taken from him by one who has a better title than the seller, whether the seller knew the defect of his title or not, and whether he did or did not make a distinct affirmation of his title." (Parsons on Contracts, 8th ed., 574.) In the case at bar appellants were in possession, but our code does not except a seller out of possession, and provides generally that "one who sells, or agrees to sell, personal property as his own thereby warrants that he has a good and unencumbered title thereto." (Civ. Code, sec. 1765.) In Souter v. Drake, 5 Barn. & Adol., 992, the rule was expressly applied. to the sale of a lease, and it was held

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