Pugsley v. Aikin

By the Court, Parker, J. When several causes of action have been improperly united, the remedy is by demurrer. (Code, § 144, sub. 5.) It has long been a well settled rule of law that a cause of action against a testator cannot be joined with a cause of action against his executors personally. (Myer v. Cole, 12 John. 349. Reynolds v. Reynolds, 3 Wend. 244. Gillet v. Hutchinson, 24 Wend. 184. Demott v. Field, 7 Comen, 58.) This rule has not been changed by the code, which authorizes the uniting of different claims against a trustee, by virtue of a contract, or by operation of law, but does not permit a claim against a trustee personally to be united with a claim against the estate represented by him. (Code, § 167.) But it is contended by the plaintiff’s counsel that inasmuch as the original letting was to the testator, the plaintiff has a right to recover the rent which accrued after, as well as before, his death. But we must not overlook the distinction between a contract for a single term, made by the testator, and a lease supposed to be renewed by a new contract made from year to year. In the former case the lessor has a clear right to recover from the executors the rent which accrued after, as well as before, the death of the testator. It is because the personal representatives holding for the remainder of the term are liable on the covenant or agreement of their testator. No case can be found, carrying a right to recover beyond this point, nor on any other principles. All the authorities relied on are of this description. The precedent in 1 Saunders’ Rep. 1, is of a declaration to recover rent which accrued after the death of the testator, on a seven years’ lease entered into by him, in his lifetime. Here was a personal covenant to pay rent for a fixed term of time, and the personal representatives were bound to make good the engagement. So, too, the case of Atkins v. Humphrey et al., Ex’rs of Scrivener, (2 Mann., Gran. & Scott, 654,) was assumpsit against the defendants for the use and occupation of [117] messuages, held of the plaintiffs by the defendants, as executors, under a demise to Scrivener, and a promise by the executors to pay, It was held, on demurrer, that it was not necessary in such case to aver an occupation by the defendants. That was the only point decided. It shows that the right to recover did not depend on the occupation by the executors, but on the demise to the testator, and the legal liability of the executors to make good the testator’s contracts. The case of Ackland v. Pring, (2 Man. & Gran. 937,) cited also by the plaintiff’s counsel, was on a lease for 21 years, and it was held that the term vested by law in the personal representatives, and that the lessor had the right to sue the personal representatives on the covenant of the testator. The other cases cited by the plaintiff’s counsel on this point, are equally inapplicable. None of them tend to show that executors, as such, can be held beyond the limit of the precise contract made by the testator; whether it be a contract for a term of years, or for a single year, or for any other fixed period of time. In the case at bar, it is alledged in the complaint that the testator hired the farm “ for the term of one year and an indefinite period thereafter,” and that after his death, the defendants, as executors, took possession of and occupied the farm “ as like tenants from year to year,” &c. Now a tenancy from year to year, by its very terms, implies an annual letting. A tenant holding over is presumed, under certain circumstances, to have contracted for another year. But when executors hold over, the presumption cannot, surely, be that their testator has contracted for another year. It is that the executors have so contracted. The demise to the testator, according to the allegation in the complaint, could not have made his executors liable for rent beyond the fraction of the year, if there was any, remaining unexpired at the time of his death. It does not appear, from the complaint, that any such fraction remained, but the allegation that he died in April seems to show that there could have been none. But however that may have been, if, after the expiration of the then current year, the executors kept possession of the farm, it was on a new contract of their own, and not on any con [118] tract of the testator; and they must be accountable for the subsequent rent personally, and not as executors. [Albany General Term, September 6, 1852. Parker, Wright and Harris, Justices.] I think it is plain that here has been a misjoinder of claims, and that the judgment at the special term should be reversed with costs, and judgment should be given for the defendants, on the demurrer, with leave to the plaintiff to amend on payment of costs.