Peck v. Northrop

Church, J. This is an action of assumpsit, to recover the arrears of rent for the use and occupation of leased premises, as stipulated in the lease, to be paid. The defendants do not deny the lease, nor the use and occupation under it; but they say, that before any rent became due, the present plaintiff, who was the lessor, sold and assigned the estate leased to another, by a quit-claim deed, duly executed and recorded» together with the reserved rents. [220] This presents the question, to whom is the rent pay able* -which became due after the assignment, and in whom is the legal right to sue for and recover it ? The land subject to the lease, that is, the reversion, was sold by the plaintiff, to Zerah S. A. Peck, by deed, dated 23rd of October, 1837, and soon afterwards recorded. It is an ele-* mentary principle of the common law, that rent is an incident to the reversion, although it may be separated from it, by special words and clear intention. There was no separation, in the present case: the deed granting the reversion, by express language, grants also the reserved rents. Rent grow#out of the estate, and the enjoyment of it; and it is the privity of estate, rather than of contract, which connects the reversion with the rent. The contract only settles the amount of rent, and the terms of its payment. Accruing rents, and such as are not yet payable, upon the death of the lessor, descend to his heirs at law, and not to his personal representatives, even if the administrators, &c., are named in the covenant to pay rent; and rent will be apportioned among the several owners of the reversion. We do not here intend to decide, that a mere naked as-signee of the rent, unaccompanied by the reversion, and where there is no privity of estate, may sue in his own name, and recover such rents ; although some of the cases to which we refer in support of the foregoing principles, sanction such a doctrine. Co. Litt. 143. 151. 2 Bla. Com. 176. Toller's Exrs. 176. Demarest v. Willard, 8 Cowen, 206. Cole v. Patterson, 25 Wend. 456. 1 Chitt. Pl. 11. 2 Tomlin's Law Dict. 82. Stone v. Knight, 23 Pick. 95. 97. Burden v. Thayer, 3 Metc. 76. Willard v. Tillman, 2 Hill, 276. 3 Cruise's Dig. 211. Robins v. Cox, 1 Lev. 22. Allen v. Bryan, 5 B. & Cres. 512. (11 E. C. L. 292.) The law is otherwise in regard to rents which have fallen due before the assignment of the reversion. These are mere choses in action ; debts which have become disconnected from the land, and have no privity with it. Such cannot be assigned, so as to authorize an action in the name of the as-signee. It follows from the principle that rent accrues to the rever-sioner, by reason of his privity of estate with the lessee or his assigns, that his claim to it would not be strengthened, it [221] by the terms of the lease, the rent had been payable to the lessor, or his assigns. It was said in argument, that if the rent be made payable to the lessor solely, this would exclude the reversioner. No authority for such a position was shown to us: we presume none can be found. It would conflict with the terms of the leases in some of the cases to which we have referred. We do not say, that language may not be so express, nor the intention ol th.e parties so evident, as to make the payment of rent personal to the lessor himself. In the present case, the rent is not, in terms, made payable to the lessor. There is nothing in the case of Welles v. Cowles, 4 Conn, R. 182., relied upon by the plaintiff, which will support his claim to this action. There, it was only decided, that the executor of Sarah Norton was entitled to the rents of her land, which accrued in her life-time, and became payable at her death. The lease in that case expired at her death, and there was no subsequent occupation, or after-accruing rent. The principles of that case are in accordance with the views we have expressed. Neither is it competent to the plaintiff to insist, as he does, that the defendants had no notice of the assignment of the reversion. This is entirely unlike an assignment of a chose in action, where, to perfect it, notice must be given to the debtor. The land was assigned, and the rent only as incidental; and notice of the transfer of the land was given to the defendants and every body else, bv the recording of the quit-claim deed. More than this — no one but the defendants can complain of the want of notice. If the deed had not been recorded, and if the defendants had paid the rent to the lessor, without notice of the assignment, they might well complain, if afterwards sued for it by the assignee. The decision of the judge at the circuit was clearly correct ; and we shall not advise a new trial. In this opinion the other Judges concurred, except Storrs, J., who was absent. New trial not to granted.