majority">Judge Stitbs

delivered the opinion of the court.

Waller, with the assent of the trustees of Shelby College, leased the college property, including the buildings, grounds, and all the appurtenances, to Guentz, who was to conduct and control the college as a literary institution, and superintend it as President. The lease was for five years, commencing on the 15th July, 1852, subject to the privilege of an earlier termination, and the rent $2,000, per annum, payable one-half semi-annually.

Guentz took possession of the property, and proceeded to organize the institution, and conduct it as president, with such professors and assistants as he deemed necessary, and chose to employ. Among, others he employed Morgan, who acted as professor- and vice president. By agreement with Guentz “Morgan was to have a fixed salary of two thousand c dollars per annum, with the privilege of occupying ‘ such rooms in the President’s house and college ' buildings as would accommodate himself and fam- ‘ ily, and answer his purposes as a professor.” The number of rooms he was to occupy was not specified, except those to be occupied by his family and servants. Under this agreement Morgan commenced his duties as professor, occupying rooms as such, and separate apartments for family purposes, keeping a separate table and establishment for his family distinct from, the college family, and so continued until 21st April, 1854. Guentz, as lessor and president, retained general supervisory control over the college property and college-during the whole period.

Guentz being in default in payment of rent, Waller, on the 15th April, 1854, caused a distress warrant to be levied upon Guentz’s property, and that of Morgan, claiming that the latter was a sub-tenant or assignee of Guentz, and liable for rent. Morgan replevied the property, and upon an issue in. the circuit court the jury found it not subject. A new trial was asked for and refused, and Waller has appealed. ■

1. To create the relation of landlord and tenant no particular form of words is necessary, but it is indispensable thatit should appear to have been the intention of one party to dispossess himself of the control of the premises, and of the other to enter and occupy as the former had the right to do.

The main question arises upon the refusal of the court to give the following instruction asked for by Waller, viz: “If the jury believe, from the evidence, ‘ that Morgan occupied the premises rented by ‘ Guentz of Waller, keeping a separate establishment, ‘ separate table, kitchen, and servants, and that these ‘ rooms in the rented premises, and these privileges, * were allowed by Guentz as a part of his salary as ‘ vice president or professor of the college, Morgan ‘ was a sub-tenant, and his property was liable.”

To create the relation of landlord and tenant no particular words are necessary but it is indispensable that it should appear to have been the intention of one party to dispossess himself of the premises, and of the other to enter and occupy as the former himself had the right to do, persuant to the agreement between them.

The employment by Guentz of Morgan, as a professor or teacher in the college, at a fixed salary, and with the privilege of occupying rooms in the president’s house for his family and servants, and the entry and use by Morgan of such rooms, did not necessarily create the relation of landlord and tenant. Such relation might be inferred from these facts, in the absence of other facts and circumstances tending to show that the employer reserved general control and dominion over the apartments so occupied, and the right of enforcing, with regard to them, any general regulation prescribed for the management of the household. And when such rebutting facts exist, the question of intention to reserve such control and general dominion then becomes material in determining the relation of the parties, and has to be settled like every other question of fact by the weight of evidence.

The fact that the employee, with the permission of the proprietor, keeps up and maintains a separate establishment and table, though strengthening the inference afforded by the use of separate apartments, is yet not conclusive of the existence of the relation *143of tenant, but may also be rebutted by other testimony showing that such separate establishment was, though separate, not independent of the proprietor’s control, but consistent with his right of supervision and entry.

2. Where a lessee permits another to occupy a part of the house rented,retaining himself the control,there is no sub-tenancy which would render such occupant liable to the landlord for rent.

Here Guentz was the president and lessee of the college; was regarded as responsible for its successful conduct and management; had the right to select and nominate, and did select the professors and teachers, who were, in point of fact, his subordinates in the college. They, as is usual in such institutions, had particular apartments allotted to them, and Morgan had the privilege of keeping a separate family establishment. Guentz says he neither underlet any of the college property, nor parted with his control over it. If so, he had the right, at any time, for the purpose of enforcing the observance of the disciplinary or police regulations of the college, to enter into the apartments occupied by Morgan or any other professor, even against their will. A right incompatible with the rights of a tenant, or of the occupant of apartments independent of such control, but yet consistent with the facts as hypothecated in the instruction refused, which leaves out of view altogether the question as to the retention of such control by Guentz, and which, in that respect, was erroneous, and therefore properly refused.

The case of McGee vs. Gibson, 1 B. Monroe, 105, is by no means conclusive of this. In that case McGee’s right of general supervision and control over the house furnished Gibson was not attempted to be shown. So far as the facte furnished in the opinion go, there was no restriction or limitation upon Gibson in the use of the house. The retention of control and supervision by McGee was not in issue, and, for ought that appears, did not exist. Gibson’s dominion over it was complete during the period he was at work. Here the control of Guentz over the premises was necessary, if not indispensable, to a proper discharge of his duties as President of the *144institution, and he says he never parted with it; and whether he did or not was an important inquiry in this case, which did not arise in McGee vs. Gibson.

3. The party upon whom the burthen of proof lies, is entitled to the conclusion in argument.

In view of the relation of the parties as president and professor, employer and employee, and the direct statement of Guentz that he did not part with the control of the premises, and also of the general facts of the case, we cannot say that Morgan occupied the relation of sub-tenant, or that of assignee, and was liable for distress, or that the finding of the jury should be disturbed.

No error was committed in awarding the conclusion of the argument to Morgan’s counsel, because, under Waller’s instruction, the former had the bur-then of proof.

Judgment affirmed.

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