Gudgel v. Southerland

Sherwin, J. — Plaintiff concedes that, under the rule of the common law, there could be no apportionment of rent not due at the time of the death of the life tenant, but contends that, under section 2988 of the Code she is entitled to a ratable rent for the time between March 1 and June 15, 1899. This statute, and like statutes in other states, were undoubtedly enacted following the principle of the statute (11 Geo. II, chapter 19, section 15) and, by considering the purpose of that statute, we may easily determine the purpose of our own. Before the enactment of the English statute there was no apportionment of rent in respect to time, and, if the life tenant died an hour before the rent reserved became due, it went to the reversioner; 311 but that statute provided that the executor of the deceased might collect a ratable rent for the time between the last payment and the death of the lessor. And this is the evident intent of our own statute, which is as follows: “The executor of a tenant for life who leases real estate so held, and dies on or before the day on which the rent is payable, * * * may recover the proportion of rent which had accrued at the time of his death.” Rent would not be payable before it became due, and the word “accrued” must be construed to mean an apportionment of the rent between the executor and' reversioner pro rata as to time,. because, if “accrued” is held to mean “due,” then the statute is deprived of all vitality. The trouble with the present case, however, is that there was nothing before the trial court from which he could determine what the pro rata rent would be. So far as the record before us discloses, there was nothing to show whether the rent was payable in cash, or in a share of the Crops raised on the leased premises, or that any part of the premises was in crops at the time of the lessor’s death. Instances may arise where the statute can be applied to the rental of farm lands, and it may also be extremely difficult in many cases to apply it to leases which provide for payment of rent in a share of the crops; but this question is not now before us, for the reason already stated. It is to be noticed, also, that there is no question here between the lessees of the life tenant and the reversioners. On the record before it, the trial court could not do otherwise than it did. —Aebtrmed.