The opinion of the court was delivered by Phelps, J. The only question in this case is, whether the defendant was in possession of the demanded premises, in such sense, as to subject him to the action of ejectment. It appears that one Daine was, in fact, in possession, who had previously conveyed his right in the premises to the defendant, with an agreement that he (Daine) should retain the use and occupancy of the-land for one year.
It is very clear, that Daine, by this arrangement, became the tenant of Gates, the defendant, and, under our statute, requiring the landlord to be joined with the tenant, an ejectment could not be sustained against Daine alone. It would be absurd to hold, that, under these circumstances, the action would not lie. Judgment affirmed.