POWELL, J.
The Court of Civil Appeals favors us with a splendid statement of the nature and result of this case in the trial court as follows:
"Defendant in error, Hanson, sued G. C. Cauble, G. C. Cauble, Jr., and T. J. Clegg, plaintiffs in error, for $924, alleged balance due on a note given by the plaintiffs in error Cauble as rental for 13 sections of land in Glass-cock county, leased by Hanson to them by written contract entered into between Hanson and the Caubles of date October 1, 1918.
"The defendants Cauble filed a general denial and special answer, to the effect that, although they had leased the premises for which plaintiff sought to recover rent, shortly after making such lease they had conveyed the same to their codefendant, Clegg, upon the assumption by him of all obligations resting upon them under the lease contract, and that with knowledge of such assignment the plaintiff had accepted rents from the said Clegg, and had released them from further liability on the contract.
"The defendant Clegg filed a general denial, and by way of special answer and cross-action asserted that, although the plaintiff had leased 13 sections of land, he failed to procure and deliver 2 of the sections, and because of such failure his pasturage had failed, the range became inadequate to take care of his cattle, and the value of such leased premises depreciated in a far greater amount than that which the plaintiff was seeking to recover, and as a further result of the shortage of pasturage and water he was compelled to, and did, expend $500 for extra feed, none of which would have been used had the plaintiff delivered the proper acreage with adequate water supply; that he was compelled to shift and move the cattle about from pasture to pasture, by reason of which fact they failed to take on flesh as they should have done, and were thereby damaged in the sum of $1,000.
"Upon trial before the court without a jury, judgment was rendered for the plaintiff against all defendants for $547.88, with interest from the date of the judgment, and against the defendants on their cross-action. From which judgment all of the defendants appealed.
"The court found that the rental value of the two sections of land which Hanson failed to deliver was $450, and gave credit upon the note for that amount."
Upon appeal, the Court of Civil Appeals, upon the filing of a remittitur by defendant in error in the sum of $50, as required by said court, affirmed the judgment of the district court. See 224 S. W. 922.
Upon proper application therefor, the Supreme Court granted a writ of error, with the notation that the decision of the Court of Civil Appeals herein appeared to be in conflict with the opinion of the Court of Civil Appeals at San Antonio in the case of Ascarete v. Pfaff, 34 Tex. Civ. App. 375, 78 S. W. 974.
As showing the nature of the assignment in the application under which the Caubles entirely disclaim liability, we quote as follows from the opinion of the Court of Civil Appeals:
"It is not contended by the plaintiffs in error that Hanson agreed to relieve the Caubles from their covenant to pay the rent stipulated in the lease contract or to relieve them of liability upon the note which they had given to cover the rental, nor is there any finding to that effect by the trial court, but the assignment proceeds upon the theory that, as a matter of law, the Caubles were relieved of liability upon the note by the assignment of the lease, of which the lessor became later advised and to which he assented, his subsequent acceptance of payments upon the note made by Clegg, and his action in seeking to hold both the lessee and the assignee liable for the payment of the rent."
The Court of Civil Appeals, in overruling above assignment of error, speaks as follows:
"On October 7, 1918, the defendants Cauble assigned their leasehold interest to the defendant Clegg, and in part consideration for such assignment Clegg assumed the payment of the note sued upon.
"The rendition of the judgment against the defendants Cauble, is assigned as error for the reason that the undisputed evidence shows that the Caubles sold and transferred the entire lease contract together with the premises covered thereby to their codefendant, Clegg, who had taken possession thereof with the knowledge and consent of the plaintiff, and that thereafter the plaintiff had accepted and received rental payments from Clegg for such premises knowing that they had been sold, transferred, and assigned to him by the Caubles.
"The evidence discloses that there was an assignment of the lease by the Caubles to Clegg rather than an underlease or subletting. Railway Co. v. Settegast, 79 Tex. 256, 15 S. W. 228; Davis v. Vidal, 105 Tex. 444, 151 S. W. 290, 42 L. R. A. (N. S.) 1084; Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481.
"The rules of law governing the disposition of the assigned error seem to be well settled. Liability for rent is based upon privity of contract or privity of estate. Where there is an express covenant to pay, the lessee is held in privity of contract. In the absence of an express covenant to pay, the liability arises upon an implied obligation whereby he is held in privity of estate. In the absence of an express covenant to pay rent, if the lessee parts with his estate, with the consent of the lessor, the privity of estate is thereby destroyed, and the lessee is not further obligated to pay rent, since there is nothing upon which to base the implied obligation. In contrast with such cessation of the lessee's liability upon the implied
covenant, the rule, where there is an express covenant to pay rent, is that the lessee after assignment remains liable on his express covenant, as in such case, though the privity of estate is terminated by the assignment, the privity of contract is unaffected. The lessee remains liable to the lessor on his express covenant to pay even though the assignment was made with the consent of the lessor. Nor is this continued liability affected by the fact that the lessor has accepted rental payments from the assignee. The receipt of such rent from the assignee does not amount to a novation of the contract or release of the lessee, but is the assertion of a right which accrued to the lessor as an incident of the assignment. Taylor v. DeBus, 31 Ohio St. 468. The lessee is not released from liability on his express covenant to pay rent by an assignment unless there is a novation of the contract whereby the lessor agrees to release him and to the substitution of the assignee as the tenant. The institution of an action by the lessor against the assignee to recover the rent does not itself affect the lessee's liability to the lessor. At his election the lessor may sue either the lessee or the assignee, or both at the same time, though he can have but one satisfaction.
"In Coal Co. v. Sharp, 73 W. Va. 427, 80 S. E. 781, 52 L. R. A. (N. S.) 968, Ann. Cas. 1916E, 786, the coal company sued its lessee, Sharp, to recover a rental royalty. Sharp had assigned his lease to the Raven Coal & Coke Company. There was an express agreement to pay the rental royalty. The court said:
"`But plaintiff also insists, with more merit in our opinion, that Sharp is still liable to it, even though he assigned the lease to the Raven Coal & Coke Company, whether with or without plaintiff's assent. If the lessee assigns the lease, even with the lessor's assent, the former remains liable on his covenant to pay rent, although rent is accepted from the assignee, unless the lessor expressly agrees to release the lessee and substitute the new tenant in his stead. Port v. Jackson, 17 Johns. (N. Y.) 239; Taylor v. DeBus, 31 Ohio St. 468; Pfaff v. Golden, 126 Mass. 402; Carley v. Lewis, 24 Ind. 23; Jones v. Barnes, 45 Mo. App. 590; Wilson v. Gerhardt, 9 Colo. 585, 13 Pac. 705; Oswald v. Fratenburgh, 36 Minn. 270, 31 N. W. 173; Frank v. Maguire, 42 Pa. 78; Bonetti v. Treat, 91 Cal. 223, 27 Pac. 612, 14 L. R. A. 151.
"`The covenant to pay rent "inheres in the estate as a covenant real, and binds the assignee of the term, by reason of his privity of estate, to pay the rent accruing during his ownership and possession of the estate, so that, after an assignment of the lease, the lessor has a double and several security for the payment of his rent, either or both of which he may pursue until satisfaction is obtained. Therefore the receipt of rent from the assignee of the lessee does not amount to a novation or release of the lessee, but is that assertion of a right, which accrues to the lessor as an incident to the assignment." Taylor v. DeBus, supra; Carley v. Lewis, 24 Ind. 23; Whetstone v. McCartney, 32 Mo. App. 430.
"`In the latter case the court said: "There are two ways in which a lessee may be liable to his lessor; one arises from his express covenant to pay, whereby he is held in privity of contract; the other arises, in the absence of an express covenant to pay rent, on an implied obligation, whereby he is held in privity of estate. In the latter case, if he parts with the estate, with consent of lessor, thereby destroying the privity, there is no further obligation to pay rent, since there is nothing upon which to base the obligation. But if he has expressly covenanted to pay, the contract lasts till discharged, and the covenant may be said to run with the land, and this is so even though the lessor has consented to the assignment by the lessee and...
