Richardson v. Neblett

Smith, C. J., delivered the opinion of the court. This is an attachment suit, brought by the appellees, in the chancery court of Bolivar county, against the appellee, to recover for the use and occupation of Green Island plantation, in that county, for the years 1912, 1913, 1914, 1915, 1916, and 1917. The plantation consists of section 16, the southeast quarter of section 17, and the northeast quarter of section 21, in township 20, range 8 west, and contains four hundred and ninety acres of open land, which was occupied by the appellant during said years, and of which open land the greater part is in said section 16. Ann S. Neblett, a resident of the state of Virginia, owned the plantation, and her title to said section 16 was a leasehold interest, being an unexpired ninety-nine-year lease, and her title to the rest of the plantation was a fee-simple title. For about twenty years prior to her death she had leased the plantation annually to the appellant; and for about twelve years preceding her death she had leased it to him at the annual rent of one thousand two hundred and fifty dollars, allowing him to deduct from the rent annually one hundred and fifty dollars for repairs and improvements and the taxes on the plantation, which he paid annually. She leased the plantation to the appellant for the year 1912' on the same terms, to wit, one thousand two hundred and «fifty dollars as rent, and — 738 — allowed him one hundred and fifty dollars for repairs and improvements, which, with the amount paid for taxes on the plantation, was to be deducted from the rent. During the year 1912 she died, leaving the appellees as her heirs at law; and T. E. Chambers and N. F. Neblett were appointed in the state of Virginia as administrators of her estate. In February, 1913', some of the present appellees brought suit against the others for a partition of the plantation as between themselves, which was litigated until the latter part of the year 1917, when the plantation was sold under decree of the court, and a partition of the proceeds was made between the parties. Neblett v. Neblett, 112 Miss. 550, 73 So. 575. When the lease of the plantation for the year 1912 made by said Ann S. Neblett to appellant expired, the appellant paid the rent, less the amount allowed for repairs and the amount paid for taxes, to the administrators of the estate, remitting the money to them in the state of Virginia; and he continued to occupy the plantation thereafter consecutively for the years 1913, 1914, 1915, 1916, and 1917, and paid the same rent for each of the years, less deduction for repairs and taxes, as for the year 1912, to said administrators. The administrators advised the appellant that they had nothing to do with Ann S. Neblett’s Mississippi property, and declined to rent it to him, but retained the money paid them by him and have it now on deposit in a Virginia bank. All of the parties hereto are nonresidents. The court below decreed in favor of the appellees for the rent agreed to be paid by the appellant to Ann S. Neblett for the year'1912, and for the value of the use and occupation of the plantation for the years 1913 to 1917, inclusive, having overruled a motion made by the appellant to exclude the evidence of the value of such use and occupation. — 739 — The appellant appealed to this court, the grounds of his assignments of error being: “ (1) That, as he had leased said plantation from Ann S. Neblett, the owner, in her lifetime, for the year 1912, and she having died during that year, the rent for that year was payable to the administrators; and consequently appellees have no right to maintain this suit, as to the rent for that vear, and especially after appellant had voluntarily paid it to the administrators, notwithstanding the fact that they were foreign administrators; “(2) That, having leased said plantation for the year 1912 for one thousand two hundred and fifty dollars as rent, with an allowance of one hundred and fifty dollars for.repairs, and having continued to occupy the plantation for the vear 1913, and again for the year 1914, and again for the year 1915, and again for the year 1916, and againforthe year 1917, without obieetion on the part of the appellees, he became a tenant from year to year, upon the same terms as for the vear 1912, and that consequently arrnellees are not entitled to recover a greater sum for the use and occupation of said land during any of said years; and “(3) That, inasmuch as the title of Ann Si. Neblett'to that part of said plantation embracing said, section 16 was an unexpired lease for ninety-nine years, that part of said plantation upon her death passed to her administrators. and that consequently appellees are not entitled to recover for the use and occupation of that part.” The first and third assignments of error involve the same questious and will be disposed of together. Ann S. Neblett’s lease of section 16 being a chattel real and under section 2056. Code of 1906, (section 1721, Hemingway’s Code), the right to collect the rent due by the appellant for the year of A fin S. Neblett’s death would have vested in an administrator of her estate — 740 — appointed by the proper court of this state, had such an appointment been made, but the Virginia administrators had no interest whatever therein; for the necessary effect of section 1648, Code of 1906 (section 1380, Hemingway’s Code), which provides that “all personal property situated in this state shall descend and be distributed according to the laws of this state,” is “to abolish ancillary administrations here altogether, and to make the administration granted of the estate of a nonresident decedent entirely independent of that of the domicile. Whatever surplus remains after ' creditors have been satisfied must be distributed to the next of kin as prescribed by” the laws of this state. Partee v. Kortrecht, 54 Miss. 66; Carroll v. McPike, 53 Miss. 569. It is true that the rent for the year 1912 was a chose” in action, 'the owner of which lived in the state of Virginia; nevertheless it is personal property situated in this state within the meaning of our statute of descent and distributions for1 the reason that it is a debt that arose out of and as an incident to the ownership of property situated in this state. Jahier v. Rascoe, 62 Miss. 699. But, even if we should be mistaken as to this, the payment of the rent to the foreign administrators can afford the appellant no protection, for the reason that these administrators failed to file “in the office of the clerk of the chancery court of the county where there may be some person indebted to the decedent or having some of his’effects in possession, a certified copy of the record of the appointment and qualification of the executor or administrator according to the law of the state or country where he qualified, and a certificate of the officer before whom he is liable to account as such that he is there liable to account for the thing sued for or received.” Section 2099, Code of 1906 (section 1.767, Hemingway’s Code); City Savings & Trust Co. v. Branchieri. 111 Mliss. 774, 72 So. 196. — 741 — In order for the appellees to recover the rent for 1912. and on section 16 for the succeeding years, they should have alleged, and, if the allegation was denied, should have proven, that there is no administrator of this estate appointed in Mississippi, and that there exists no necessity for the appointment of one, and their bill of complaint contains no such allegation. On the death of Ann S. Neblett the title to the. land out of which the rent here in question arose was cast upon the appellees as her heirs at law, and the appellant then became their tenant for the unexpired portion of his lease for the year 1912, and by continuing to occupy-the land after the expiration of his lease without objection from the appellees, his landlords, he became their tenant from year to year. Usher v. Moss, 50 Miss. 208. It is true that in the eyes of the law Ann S. Neblett’s leasehold interest in section 16 was a chattel to be dealt with on her death as personal property; nevertheless', in the absence both of the appointment in this state of an administrator of her estate and of any necessity therefor, it descended directly to her heirs and vested in them to the same extent as did the land owned by her in fee. Section 1653, Code of 1906 (section 1385, Hemingway’s Code); Andrews v. Brumfield, 32 Miss. 107; Neblett v. Neblett, 112 Miss. 560, 73 So. 575. That the appellees m,ay have -been in doubt as to whether the title to the land was cast’ by the death of Arm S. Neblett upon all or only a part of them, and that that fact was not determined until the rendition of the decree in the case of Neblett v. Neblett, supra, does not prevent the appellant’s continued occupancy of the land from resulting in a tenancy from year to year. When he leased the land for -the year 1912, he thereby acquired the right of becoming a tenant thereof from year to year by remaining in possession after the expiration of his lease without objection from his landlord, who then was — 742 — Ann S. Neblett, and on her death the land descended to her heirs, burdened with this right of the appellant. The payment of the rent by the appellant to the Virginia administrators does not indicate, as claimed by the appellees, that he refused to recognize their title to the land, thereby preventing his continued occupancy from resulting in a tenancy from year to year. On the contrary, it indicates that he was trying to■ pay the rent, but, not knowing to whom it was due, offered it to the wrong person. Had the appellees called on him for the rent and been refused payment, a different question might be presented. The appellant being a tenant from year to year, the appellee’s evidence of the value of the use and occupation of the land should have been excluded. Reversed and remanded.