#### CHARITY CROWELL v. ROBERT SIMPSON.

Where one sold property, and took a note for the price, and there was a lien upon such property at the time of the sale, and the purchaser paid the price to the encumbrancer, it was Held that the law presumed the payment to have been made at the request of the vendor, and that such payment was valid.

This was an action of debt on a single bill, tried before Bailey, J., at Spring Term, 1859, of Union Superior Court.

■ The bill was executed by the defendant and payable to one Parrot Williams and his wife, Charity. A suit was brought upon the note in the name of Williams alone, and while the *286suit was pending he died, and it abated. The widow of Williams then married one Crowell, and he died, and the present plaintiff is his widow and one of the obligees. The defendant insisted that the note had been paid. It was in evidence, that the plaintiff said it had been paid to her first husband, Williams. The plaintiff then introduced evidence, from the defendant’s admissions, how, and in what way, payment had been made. It appeared the note had been given in the purchase of an equitable interest in two slaves, which had belonged to plaintiff before she intermarried with her first husband, and which had been conveyed by deed of trust, by said husband, Williams, to one Urafiin, to secure certain debts, which Williams owed to Hugh and Eli Stewart, which were unpaid at the time of the purchase. The defendant paid off these debts, which amount, was as great as the sum due upon the note, and said, if he could be allowed this payment, the note would be discharged, otherwise not; that Williams said he had paid them without authority. He said, in the same conversation, that Williams said, at one time, that he might pay them, and he, defendant, could prove this by Hugh Stewart.

The Court charged the jury, that if the defendant paid this money, at the request of Williams, they should find for the defendant; that if Williams did not request him to pay these debts, there was no evidence of ratfication of such payment subsequent thereto, as was insisted by defendant’s counsel, and further, that if he paid without request, the law did not imply one. Defendant excepted.

Verdict for plaintiff. Judgment. Appeal by defendant.

Ashe and Jones, for the plaintiff.

Osborne, for the defendant.

Manly, J.

The debt, for which this warrant was brought, was incurred in the purchase of certain slaves, which had belonged to the plaintiff prior to her marriage with one Williams, and which, Williams, after coverture, sold to the defendant. The slaves, at the time of the sale, were subject to *287the lien of Eli and Hugh Stewart, for debts due them by deed in trust, to one Draffin as trustee. The question is, whether, when the money fell due to Williams and wife, the application of it, by defendant, to pay off the encumbrance upon the slaves, was a payment of Williams’ debt, without proof of a request, or of an agreement to such application. It is a question not free from difficulty, but we have concluded it is good as a payment of defendant’s debt to Williams, upon the contract of purchase.

An analogous principle is well established in relation to the rights of landlord and tenant. Where there is a separate ownership of the ground and house, the lessee, who finds a back ground rent due, for which he is liable by distress, may apply the money due to his landlord, to the payment of the ground rent, and consider it a payment made to his landlord. Several cases are found to support this principle, as Sapsford v. Fletcher, 4 T. R. 511; Taylor v. Zamira, 6 Taunt. R. 521; Carter v. Carter, 5 Bing. Rep. 406 ; Lampleigh v. Brathwait, 1 Smith’s Leading Cases, 67, and notes 70, et. seg.

The principle upon which these cases rest is this : the immediate landlord is bound to protect his tenant from all paramount claims, and when, therefore, the tenant is compelled, in order to protect himself in the enjoyment of the land, in respect of which his rent is payable, to make payments, which ought, as between himself and his landlord, to have been made by the latter, he is considered as having been authorised by the landlord, so to apply his rent due or accruing due. There was precisely a similar constraint upon Simpson to protect himself in the enjoyment of the slaves, by relieving them from the lien of the trust, and his payment to that object, should receive a similar construction.

Proof of express authority to make the application, is not necessary. It should be presumed from the circumstances. There is error, therefore, in the instructions to the j ury in this respect, and there must be a venire de novo.

Per Curiam,

Judgment reversed.