Heydenfeldt, Justice, delivered the opinion of the court. Wells, Justice, concurred. The first proposition of the respondent is correctly stated, that Gaskill’s lien attached only on Trainer’s leasehold interest, subject to all the conditions of the lease from Moor to Trainer. From this it is attempted to be deduced, that as by the terms of the lease, it was to be forfeited upon non-payment of rent, the failure of the lessee to pay, destroyed the lien of the plaintiff. This would be only true, if there had been a technical forfeiture. The failure to pay, cannot alone create one.

There was an equal necessity that a formal demand for the rent should have been made on the day it became due. Nor for the purpose of forfeiture, will a waiver of the demand ever be implied, because a forfeiture, from its very nature, cannot take place by consent, and it is not favored by the rules of law. Having declined to take the legal steps to produce the forfeiture, Moor, it is said, received the leasehold estate by surrender, and that consequently the right of all parties derived under the lease were determined with it.

Such a rule would be fraught with hardship and inconvenience, and has no legal sanction. If he took by surrender, the estate must nevertheless be subject to the burdens with which it was invested at the time ; for although by the surrender, the leasehold estate is merged in the fee, yet this principle of merger which arose out of the fondness of the law for convenience and symmetry, was never designed to defeat the rights of a third party, which had intervened before the merger took effect.

It is unnecessary to decide whether the words, “ cancelled and discharged,” written across the lease, have the legal effect of creating a surrender or not, because in either event, from the views here taken, the right of the plaintiff to the enforcement of his lien is upheld. Judgment reversed, and cause remanded.