Condit v. Neighbor

Ewing, C. J. The plaintiffs in this action, seek to recover the annual rents for sixteen years reserved in a lease of certain lands in the county of Morris. The defendant has demurred to the declaration and insists, 1st, that the plaintiffs are not entitled to recover, because from the facts set forth in the declaration, the rents in question belong not to them but to other persons; and 2d, that if any of the rents have accrued to the plaintiffs, they are the rents for a part only and not for the whole of the period demanded. On the 13th day of April, A. D. 1747, John Budd and Sarah, his wife, being seized in fee simple of a tract of land in the township of Roxbury in the county of Morris, by deed demised the same for a term of ninety-seven years, at a certain annual rent, to Jacob Bodine, his heirs and assigns, who covenanted — 91 — for the payment of the rent during the term “ unto the said John Budd and Sarah, his wife, and each of them, their heirs and assigns.” Bodine entered and was possessed, and afterwards all his estate, right and interest in the demised premises became by assignment, legally vested in the present defendant. John Budd, by his will, devised the reversion of the premises to his wife, the said Sarah, and died on the 1st of October 1749. Sarah intermarried with John Scott in November 1755. She died in 1775. Scott survived her and died in 1800. The declaration avers that the rent was duly paid to Budd and wife, during the life time of Budd; and that “ the said rent has been since for a long time duly paid,” but it contains no averment more specific in respect to the person or persons to whom the subsequent rent was paid. The plaintiffs claim under the heirs and descendants of John Budd and Sarah Scott. The defendant insists that by virtue of the marriage and the survivorship of the husband, John Scott, his representatives and not the plaintiffs, are entitled to the arrearages of rent which accrued during the period of sixteen years next before the commencement of this action and which are now the subject of controversy. The doctrine of the defendant’s counsel, that the reversion and the rent are separable, and that each may become vested in a different person, is satisfactorily sustained by the authorities. The same authorities, however, shew that the rent is an incident' to the reversion, or in other words, belongs or appertains to it, and follows it whithersoever and into whatsoever hands it may-pass, unless they are severed by the act of their owner or by the-operation of the law. Co. Lit. 143, a, 151, b; 4 Kent Com. 351; Shep. Touch. 78; 19 Viner tit. reversion, E. pl. 9. In the present case it is manifest that the reversion and the rent w-ere united from the commencement of the term until the-decease of John Budd. Whether after liis death, his widow held the reversion by- survivorship or under the devise, does not distinctly appear, nor is it material to enquire, since whichsoever way the truth lies, it is equally manifest that the reversion and the rent were united in her and underwent no separation until the marriage. What then was the consequence of the. marriage an'd of the subsequent events ? John Scott, the husband, as both, sides agree, became entitled to the reversionary — 92 — estate for the joint lives of himself and wife, and farther, as he .survived, for the rest of his own life, as tenant by the Gurtesy, if they had issue, which fact, however, is not either stated or denied in terms by the declaration. But were the rent and the reversion severed by the marriage and the survivorship? Was the right to the rent absolutely vested in the husband for the residue of the term in the lease and at his decease transmitted to his representatives, so that the rent for the years now in question has accrued to them ? Or did the rent follow the reversion and Scott become entitled during their joint lives, or as tenant by curtesy, and at his decease, the heirs of John Budd or Sarah Scott, on whom the reversion descended and who are as already remarked, represented by the plaintiffs ? The affirmative of the former question is maintained by the defendant; of the latter, by the plaintiffs. The general rula as already stated is, that the rent as an incident, follows the reversion. Aocessorium sequitur swum principóle. It is incumbent then on the defendant to shew that the marriage forms an exception to this rule or varies the operation iof it. To do so, he cites the general doctrine from Bacon and Blackstone, that the marriage is a gift to the husband of the chattels real of the wife. The gift, however, is but a qualified one, because if she survives, the chattels real, not disposed of by the husband, belong to her. But is the general doctrine specifically applied to the case of rent accruing subsequent to the termination of the interest of the husband in the reversion ? We have not been furnished, from either side, with an authority expressly in point on this enquiry. Clancy, in his recent treatise on husband and wife, says, •“ Arrears of rent are chattels real of a mixed nature, being partly in possession and partly in action, and if the husband survive his wife, he and not her representatives shall have all those arrears which became due during the marriage in her right, by survivorship; and if she survive her husband, she shall lave them and not the executors of the husband. And if the lusband survive the wife, he shall have not only the arrears of rent incurred during the marriage, but those which were due before it.” Clancy 10. The right of the husband is here limited to the rents accruing during and before the marriage. Nor — 93 — does the writer either here or elsewhere entitle the husband to* the rents which may have accrued after the coverture or after the expiration of his tenancy by the curtesy. The right of the* husband is stated in the same qualified and limited manner in Viner. “ If a feme having a rent for life takes baron, the baron shall have the arrearages of rent incurx*ed daring the coverture.”' Viner, tit. Baron and feme, H. pl. 1. “ If a fexne leases for years,, rendering rent, and after, takes husbaxid and dies, the baron shall have the arrearages incurred during the coverture. Ibid, pi. 4. Axxd in GomyEs, “arrearages of rent service, charge; or seek, which iixcur daring the coverture, the husband shall have if he survive.” Com. dig. tit. Baron & feme, E. 3. Lord Coke says, “ Chattels real consisting merely in action, the husband shall not have by the intermarriage, unless he recovereth them in the life of the wife, albeit he survives his wife, as a writ of right of ward, a valore maritagii, a forfeiture of marriage or the like, whereunto the wife was entitled before marriage. Chattels real of a mixed nature, that is to say, partly in possession and partly in action, which happen during the coverture, the husband shall have by the intermarriage if he survive his wife, albeit he reduceth them not into possessioix in her life time, but if the wife survive him, she shall have thexn.” The example he puts for illustration is, a rent; and as may be noticed, a rent accruing during the marxiage. “ As if the husband be seized of rent service, charge or seek, in right of his wife, the rent become due during the coverture, the wife dieth, the husband shall have the arrearages; but if the wife* survive the husband she shall have them and not the executors of the husband.” Co. Lit. 351, a. In another place, Coke says “ A man seized of rent in fee hath issue a daughter who is married and hath issue and dieth seized, the wife before the rent became due dieth, she has had but a seizin in law, and yet he. shall be tenant by the curtesy.” Co. Lit. 29, a. Here it is to be* observed, the interest, which accordixxg to the opinion of the commentator, the husband takes in the rent, is not absolute and entire, but as tenant by the curtesy oxily, and of consequence ceasing at his death. In De Grey v. Richardson and others, 3 Alk. 469, lands on which there were leases for years existing and rent incurred, descended on a married woman as tenant in tail.. She. lived four months94 after farther rent became due, but made no entry nor did she or any person for her, receive any rents, and she died leaving issue. The husband insisted that he Avas entitled, as tenant by the curtesy, to the possession of the estate, and therefore prayed by his bill to be let into possession and to receive the rents for his Ife. Lord Chancellor Hardwicke decreed “that the husband, Pamplin Richardson was entitled to be tenant by the curtesy of all such lands as descended to his late wife in tail whereof any leases for years were existing at the time the lands descended on her and which continued till her death.” I do not find then any ground to believe that the rents which accrued under the lease now in question after the decease of John Scott, belonged to his representatives ; and am therefore of opinion the demurrer on this point cannot be sustained. The other cause of demurrer is, that if any rents have accrued to the plaintiffs, they are for a part only and not the whole of the period demanded, or in other words, that the claim •of the plaintiffs as exhibited in. the declaration, is more comprehensive than their right. The private act of the legislature set forth in the declaration which was intended to vest the estate and interest of the heirs .and descendants of John Budd and Sarah, his wife, afterwards Sarah Scott, in the Budd or Dutch Valley tract, including the premises for which these rents are said to have accrued, in William S. Pennington as a trustee for certain purposes, Avas passed on the 27th day of December 1828. In consequence of the decease of Judge Pennington, another private act was passed whereby “ all the right, title, estate and interest of him and his heirs ” in the tract, were vested in the plaintiffs in this cause and to the same uses, trusts, and purposes as are set forth in the first mentioned act. The demand of the plaintiffs is for the rents for sixteen years ending on the first day of November 1829, including therein the rents of several years antecedent to the act of 1823. The force and operation of that act are thus made the question. The defendant insists, the act is to be construed in the same manner as a grant or deed between individuals, and the plaintiffs are therefore entitled to no rent accruing before the passing of the act. The plaintiffs insist they are entitled to the rents for the whole period comprehended in their claim. — 95 — The general rule has not been controverted that the grantee or assignee of a reversion, to which rent is incident, cannot recover rent which has accrued prior to the transfer of the reversion to him. Nor is it disputed that the legislature might, if they thoxxght proper, authorize the trxxstee to recover such antecedent rents. The constrxietion of the act, then, is the proper enquiry. The enacting clause vests in William S. Pennington, his heirs and assigns, the Budd or Dutch Valley tract supposed to contain 1680 acres more or less, “ together with the remainder or remainders, reversion or reversions, rents, issues and profits thereof. ” These words are of ordinary use in the conveyance of land, and there seems no just reason or proper claim for a broader meaning or more comprehensive action w^hen introduced here. As ordinarily used, they convey no right to antecedent rents, and should not therefore here, unless there is something in the context or the nature or intent of the trust to require it. The section farther authorizes William S. Pennington “ to sell and convey the said premises and if necessary to demand and sue for the same, and the rents, issues and profits in his own name and as though the said William S. Pennington was entitled to the same in fee simple, and to apply and dispose of the moneys arising on said sales and the rents, issues and profits of the said premises.” There is nothing in the ordinary acceptation of these terms which may not be satisfied by the rents accruing subsequent to the act, and the introduction of them may very probably have been to remove any doubt which might be anticipated from a mere transfer of the premises and the conferring of power to sue therefor. The nature or intent of the trust, and the motives for passing the act áre set forth in a preamble in which there is more to repel than sustain the construction the plaintiffs claim for the enacting clause. The preamble recites that Budd and his wife were seized in fee of the tract of land, that by divers descents, devises and conveyances it became vested in the heirs and descendants of them or one or both of them, that the said heirs and descendants as far as ;in their power had conveyed to William S. Pennington, their respective rights, titles, and interest in and to the tract, “ in trust to dispose of the same for their mutual — 96 — benefit,” that by reason of the numerous heirs and descendants being dispersed in divers parts of the United States and elsewhere, who derive their title from several distinct branches of the said family, doubts existed as to the rights of the said William S. Pennington and his power to sell and dispose of the said land so as to make a complete title to purchasers thereof, whereby the said William S. Pennington had not been able to execute the trust reposed in him, for remedy whereof it was enacted. The great purpose of the trust seems to' have- been “ to sell and dispose of the land,” nor does it appear that any difficulty had occurred in the collection of the- antecedent rents, nor indeed that they had not been collected. But to< enable him to sell and dispose of the land and to remove the difficulties which stood in the way of that object, the act was made; and inasmuch as rents might accrue in the mean time and before a sale; was; effected, they authorized him to do, what without such express, authority mighf perhaps have been doubted, to collect the rents; and apply them with the amount of sales. Ini the preamble1,, the collection of rents of any description is not mentioned. And if the wish of the parties interested,, and the design of the- legislature had been to give a retrospective aspect to the power of the trustee, we should not, it may be safely believed, be unable to find any allusion, more or less direct and1 explicit,- to> the1 antecedent rents. The just construction of all parts, of the- act thus appears to me to be that no- express- power to> collect the antecedent rents was given to the1 trustee, and he therefore possessed no such power, if not imparted by vesting in him the reversionary estate. This construction of the first act, it was suggested on the argument, might raise a question whether the- present plaintiffs can claim rent prior to the date of the- act. which constitutes them trustees. I foresee no such difficulty, because they are authorized “ to do and perform all such acts which might have been done bythe said William S. Pennington, in the premises.” And “ all the right, title, estate and interest of the said William S. Pennington and of his heirs ” in the premises mentioned in the act were thereby vested in the plaintiffs “ in as full and ample a manner as. the same vested, in the- same William S. Pennington, in his life time,”’ — 97 — But the plaintiffs’ counsel contend, that if they have claimed in the declaration, more than they are entitled to recover, the proper bounds to the recovery will be set on the trial, by the evidence, and that as they have a right to some portion of the rents, the demurrer cannot be sustained. Where the demand exceeds the right, but the fact of excess does not appear by the declaration, there can be no demurrer on this account. But where it is apparent that the plaintiff claims or demands more than his right, there may be a demurrer although some portion of the claim as made, is rightful; for in such case, the rule of good sense as well as of good pleading, is brought into action, that the defendant shall not be compelled to answer or defend for that to which the plaintiff has no lawful right. 1 Lord Raym. 329; 2 Lord Raym. 1382; And. 246; Carth. 96. Upon this point then, it appears to me that this demurrer is well taken. Cued in Lloyd Ex. v, Rowe, Spencer 685.