Baldwin, J., and Field, J., concurring.

*303There is no misjoinder of parties plaintiff; the action does not arise upon contract, but in tort. By failing to pay rent when demanded, the contract under the lease was determined, and the possession of the defendants was, from that time, tortious.

The question of title to the property does not arise ; the lease is evidence, not of title in the plaintiff, but of the fact of actual possession prior to defendants’ entry, and of the fact that defendants acquired possession under them.

The verdict and evidence are conclusive that the judgment recovered by Hoe against defendants was collusive, and was suffered with intent to defraud plaintiff. It was, therefore, void as to them. (See section 20 of the Statutes of Frauds, Wood’s Digest, 107.)

There being no error in the record, judgment is affirmed.