Logan's Adm'r v. Caldwell

Scott, Judge, delivered the opinion of the court. John Logan conveyed a tract of land to the defendant, Caldwell, in fee, with the following clause, by way of exception or reservation, viz: “ With this exception, that said John Logan reserves the use of said tract of land and farm thereon, or the rents and profits arising from it, during his life and [374] the life of his wifeJohn Logan’s wife survived him, and the question is, whether this clause gives the rents and profits accruing after his death to his wife. We see nothing in the language used which can by any implication create any estate or interest in the wife. If the reservation had been during the life of the wife alone, would she have taken any interest ? Can the circumstance that it is made during the joint lives of herself and husband vary the effect of it ? If a landlord reserves a rent in a lease to B. during the life of 0., does that, by any implication, entitle C. to the rent? We see no difference between that case and the present one. There is nothing in the relationship between husband and wife which can make a difference. It was insisted for the defendant that the administrator of John Logan had no right to sue for the rent; that if any right of action existed, it was in his heirs and not in his administrator. We do not consider that the clause in the deed that has given rise to this controversy, created the relation of landlord and tenant between John Logan and the defendant. A rent, strictly speaking, must be certain, or that which may be made certain. Here, there is no reservation of any thing certain. The entry of the defendant under the deed impliedly raised on his part a promise to pay for the use and occupation of the land.' That promise to Logan was transmissible to his personal representatives. Judge Ryland concurring, the judgment will be reversed, and the cause remanded. LEONARD, Judge. The reservation here, I think, is to the husband during the joint lives of himself and wife, and the wife, therefore, took no interest, although it is very probable the husband meant otherwise. Upon the husband’s death this was an estate pur atiter vie, and, being a freehold interest, did not vest in the administrator, so as to entitle him to sue for the use and occupation had after the husband’s death. (4 Kent Com. 26, 27.) In most of the states provision has been made by statute, vesting such estates in the administrator; but nothing of [375] the kind has been done here. If it were to be considered as an estate pur outer vie in a rent, instead of an estate in the land, it would, at common law, be extinguished by the death, (Co. Litt. 41, b, and Hargrave & Butler’s note 240,) and we have no statute remedying this defect. There is no express contract here on the part of the grantee in the deed to pay the husband for the'use of the land, and although, while he was alive and the owner, such a contract would be implied from the use in favor of the husband as owner, none can be implied after his death, without first assuming that this freehold interest in the land belonged to the administrator as such. I think the judgment is right, although for a different reason from the one upon which I suppose it was given.