Hemphill against Tevis, 4 Watts & Serg. 535

The opinion of the Court was delivered by Sergeant, J. — The 119th

section of the Act of 16th of June 1836, relating to executions, gives the purchaser at sheriff’s sale all the remedies to recover the rent which the defendant might have had; but that can only be where the relation of landlord and tenant continues. In the case of a lease made before the mortgage, the purchaser takes as assignee of the reversion, and the relation necessarily continues. But where it is subsequent, the title under the mortgage is paramount, and then it is at the election of the purchaser to' affirm or disaffirm the lease.

If he affirm it, he has all the remedies of a landlord; if he disaffirm it, he thereby severs the relation, extinguishes the tenancy, and he is no longer entitled to these remedies. The question then is, whether the plaintiff here, by giving the defendants notice to quit after his purchase at sheriff’s sale, disaffirmed the lease: and we think it clear that he did. It was a decisive and unequivocal act, and was so considered in The Farmers’ and Mechanics’ Bank v. Ege, (9 Watts 436).

The tie thus broken could not be knit together again by the defendants’ remaining in possession, or any act short of a mutual contract between the parties for a new lease. The defendants’ not surrendering the possession (if such were the case) could not have that effect, however it might operate as -to the claim for use and occupation founded on possession. We think the lease was at an end by the notice, and that the purchaser could not afterwards sustain an action founded upon the contract, to recover rent.

If the defendants are liable at all, it can only be for use and occupation, or on some other ground than the contract. Judgment reversed, and a venire facias de novo awarded.