VIII. Debt for Rent Arrear. If a lease be of lands or tenements for years (a), or at will (b), rendering rent, debt lies for the recovery of rent arrear, by the common law. So if a lease be for life, debt lies for the arrears by the common law after the estate of freehold is determined (c); and by 8 Ann. c. 14, s. 4, though a lease for life be continuing, any person having rent due on such lease may bring debt for the same, in the same manner as if due upon a lease of years. But debt does not lie by the grantee or devisee of an annuity against the grantor or devisee of the land, either at the common law, if the grantee or devisee takes a freehold (d), or by the statute, for that only applies to cases between the lessor and lessee (e). So if land be conveyed by A. to B., his heirs and assigns, to the intent that C., his heirs and assigns, may receive a yearly rent thereout, C. cannot bring debt for the rent against B. (f); unless there is an absolute covenant by B. to pay it (g). At common law, if a person seised of rent-service, rent-charge, rent-seck, or fee-farm, in fee-simple or fee-tail, died, and there was rent arrear, neither his heir nor executor could maintain an action of debt for such rent (h): the heir was not competent to sue, because he was a stranger to the personal contracts of his ancestor; and the executor was incompetent, inasmuch as he did not represent his testator as to any contracts relating to the freehold and inheritance. To obviate this, it was enacted by 32 Hen. VIII. c. 37, s. 1, that an executor or administrator of any person seised of such rents in fee, in tail, or for life, might maintain debt against the person who ought to pay the same, and his personal representative (i). As to what persons are within this statute, see post, tit. "Distress," IV. The devisee (k) however, or assignee (1) of rent, reserved on a lease for years and disconnected with the reversion, might maintain debt for the rent, or for the arrears thereof(m), at the common law, and, it seems, without attornment (n); but by the 4 Ann. c. 16, s. 9, attornment is no longer necessary. The action must be brought against the persons who took the profits when the rent became in arrear, or against their executors or administrators (o). If A. make a lease for life, or a gift in tail, reserving a rent, that is a rent-service within the 32 Hen. VIII. c. (a) Litt. s. 58. (b) Ibid. s. 72. (c) 1 Roll. Abr. 596, pl. 11. (d) Kelly v. Clubbe, 3 B. & B. 130. (i) The action is local, and must be brought where the land lies; Bull. N. P. (k) Ards v. Watkin, Cro. Eliz. 637. 37 (p). The act is remedial, and extends to the executors of all tenants for life (q). If lessee for years assign over the term, reserving a rent, he may maintain debt for such rent arrear, although he has not any reversion (r). Declaration. It is a general rule, that, whenever an action is founded on a deed, the deed must be declared upon. But the action of debt, for rent arrear, forms an exception to this rule; for in this case it is not necessary to declare upon the deed (s). Debt for rent, by the lessor against the lessee, may be brought either where the land lies, or the deed was made (t); but debt by the grantee of the reversion against the lessee (u), or by the lessor against the assignee of the term (x), or by the grantee of the reversion against the assignee of the term (y), is maintainable on privity of estate only; consequently is local, and must be brought in the county where the lands are. If the venue is laid in the wrong county, advantage may be taken of it on demurrer (z), if it appear on the face of the record; otherwise it should, it seems, be pleaded (a). Debt for rent against an executor of lessee is transitory (b), if it is for arrears in the testator's lifetime; but where it is for rent accrued in the executor's time, it must be where the land lies; for in this case the executor is charged as assignee on the privity of estate, and not on the privity of contract (c). If A. demises land by indenture to B. for years, yielding rent, and B. dies, making C. his executor, the lessor may have debt against the executor for the rent reserved and arrear, after the death of the lessee, although the executor never entered nor agreed; for the executor represents the person of the testator, and the testator by the indenture was estopped and concluded during the term to pay the rent upon his own contract; and, therefore, although the rent is higher than the profit of the land, yet the executor cannot waive the land, but, notwithstanding that, he shall be charged with the rent (d). So in Helier v. Casebert, 1 Lev. 127, Wyndham, J., said, that an executor cannot waive a term, so as not to be charged for the rent, if he has assets: for he is bound to perform all the contracts of the lessor, if he has assets, be the rent above the value of the land or not: which was not denied. Kelynge, J., said, that he could not so waive it, but that he should be charged in the detinet, on which the assets would come into question. And if he continues the possession, he shall be charged in respect of the reception of the profits, whether he has assets or (p) 1 Inst. 162, b. (q) Hool v. Bell, Lord Raym. 172. And (y) Barker v. Damer, Carth. 183. S S not to which Twysden, J., agreed. But he may plead the special matter, viz. that he has no assets, and that the land is of less value than the rent. Billingshurst v. Speerman, Salk. 297. - Pleadings. In debt for rent, upon a demise of land, if the rent be reserved by deed the defendant may plead non est factum; if without deed, non dimisit, or nothing in arrear, or that the defendant never entered. The plea of nil debet shall not be allowed in any action; 11 Pl. R. H. T. 1853. In debt for rent, against the lessee (e), or his personal representative (f), an assignment before the rent became due cannot be pleaded in bar of the action; for the privity of contract remains notwithstanding the assignment: but an assignment and an acceptance by the lessor of the assignee as his tenant may be pleaded in bar, either by the lessee (g) or his personal representative (h); for the lessor may charge the lessee or assignee at his election, but when he has determined his election by accepting rent from the assignee, he cannot afterwards resort to the lessee, for the privity of estate is destroyed (i). Upon this principle it was held, that debt would not lie against the lessee for rent accruing after his bankruptcy, when he had ceased to occupy the premises, and the assignee was in possession under the commissioners' assignment, the lessor's assent to such assignment being virtually included in the statute authorizing it, and being equivalent to an express assent (k). Eviction.-In debt, as in other remedies for rent arrear, an eviction may be pleaded in bar, for that occasions a suspension of the rent; but care must be taken that an eviction (1), or such facts as amount in law to an eviction, be stated in the plea; for if a mere trespass (m), or an illegal ouster (n) only, be stated, the plea will be insufficient. See post, tit. "Replevin.' If the land be evicted, or the lease determine before the legal time of payment, no rent shall be paid; for there shall never be any apportionment in respect of part of the time, as there shall be in respect of part of the land (o). Hence, at common law, if a tenant for life made a lease for years, rendering rent at Easter, and the lessee occupied for three quarters (e) Walker's case, 3 Rep. 22, a. (f) Helier v. Casebert, 1 Lev. 127. (g) Marsh v. Brace, Cro. Jac. 334. (h) Marrow v. Turpin, Cro. Eliz. 715. (i) Per Bayley, J., Thomas v. Cook, 2 B. & Ald. 121; Davison v. Gent, 1 H. & N. 744, acc. (k) Wadham v. Marlowe, 8 East, 314, n. But assumpsit lies against a lessee from year to year upon his agreement to pay rent during the tenancy, notwithstanding his bankruptcy, and the occupation of his assignees during part of the time for which the rent accrued. Boot v. Wilson, 8 East, 311, and post, "Use and Occupa (1) Hunt v. Cope, Cowp. 242. (m) Reynolds v. Buckle, Hob. 326. (n) Vochell v. Dancastell, Moor. 891. (0) Clun's case, 10 Rep. 128, a. "Where our books speak of an apportionment in case where the lessor enters upon the lessee, in part, they are to be understood where the lessor enters lawfully, as upon a surrender, forfeiture, or such like, where the rent is lawfully extinct in part." 1 Inst. 148, b. "If there be lawful eviction from part by an elder title, it is clear that the rent is apportioned only, and not suspended." Per Cur., Neale v. Mackenzie, 2 C. M. & R. 84. of a year, and in the last quarter before Easter the tenant for life died; in this case there was not any apportionment of rent for the three quarters of a year. Now however by 11 Geo. 2, c. 19, s. 15, -Where a tenant for life dies before or on the day on which the rent is reserved or made payable, upon any lease of lands, &c., which determines on the death of such tenant for life, his personal representative may, in an action on the case, recover from the under-tenant of such lands, &c., if the tenant for life die on the day on which the same was made payable, the whole, or if before such a day, then a portion of such rent, according to the time the tenant for life lived, of the last year, or quarter of a year, or other time in which the said rent was growing due, making all just allowances, or a proportional part (p). By the 4 & 5 Will. IV. c. 22, s. 1, rents reserved on leases of lands, &c. which have been and shall be made, and which leases determine on the death of the person making the same (although such person was not strictly tenant for life thereof), or on the death of the life for which such person was entitled to such hereditaments, are to be considered as within the foregoing provision. And by sect. 2, "All rents-service reserved on any lease by a tenant in fee, or for any life interest, or by any lease granted under any power (q) (and which leases shall have been granted after the passing of this act, 16 June, 1834), and all rents-charge and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description, in G. B. and I., made payable, or coming due at fixed periods under any instrument that shall be executed after the passing of this act (r), or (being a will or testamentary instrument) that shall come into operation after the passing of this act, shall be apportioned so and in such manner that on the death of any person interested in any such rents, annuities, &c. or in the estate, fund, office, or benefice, from or in respect of which the same shall be issuing or derived, or on the determination by any other means whatsoever of the interest of any such person, he or she and his or her executors, administrators, or assigns, shall be entitled to a proportion of such rents, annuities, &c., according to the time which shall have elapsed from the commencement or last period of payment thereof respectively (as the case may be), including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions in respect of charges on such rents, &c., being made; and that every such person, his or her executors, administrators and assigns, shall have such and the same remedies at law and in equity for recovering such apportioned parts of the said rents, &c. when the entire portion, of which such apportioned parts shall form part, shall become due and payable, and not before, as he, she, or they would have had for recovering (p) See Botheroyd v. Woolley, 5 Tyrw. Sm. 470. (r) See Knight v. Boughton, 12 Beav. 312. and obtaining such entire rents, annuities, &c., if entitled thereto, but so that persons liable to pay rents reserved by any lease or demise, and the lands, &c. comprised therein, shall not be resorted to for such apportioned parts specifically as aforesaid, but the entire rents of which such portions shall form a part shall be received and recovered by the person or persons, who if this act had not passed would have been entitled to such entire rents: and such portions shall be recoverable from such person or persons by the parties entitled to the same under this act, in any action or suit at law or in equity." By sect. 3, the above provisions are not to apply to cases in which it shall be expressly stipulated that no apportionment shall take place, or to sums payable on policies of assurance. The above section does not, it seems, apply to cases where the landlord by his own act determines the tenancy, e. g. by bringing ejectment, but only to those where the rent continues and is to be apportioned between the individual who was entitled when it began to accrue, and another who has come in as remainder-man or reversioner, or otherwise (s). In re Markby, 4 M. & Cr. 484, Lord Cottenham, C., held, that the statute does not apply to rents, payable by tenants from year to year, which have not been reserved by an instrument in writing; and in Brown v. Amyot, 3 Hare, 173, Wigram, V. C., held, that the death of the person interested in the rent or other payment-the event on which the apportionment is to take place-must be understood as a death occasioning the determination of the interest; and therefore that the act does not apply to any cases except those in which the interest of the party entitled to the rents, annuities, or other periodical payments, determines by death or some other means, so that there is no apportionment of rent as between the heir and personal representative of a tenant in fee. Acc. re Clulow, 3 K. & J. 690. Nil habuit in tenementis.-If the plaintiff declares upon an indenture of lease, the defendant cannot plead nil habuit in tenementis, or non dimisit; because the defendant, by the execution of the counterpart of the indenture, is estopped from controverting either the power of the plaintiff to demise or the actual demise (t): but otherwise it is, where the demise is by deed poll (u), or by parol. In debt for rent reserved upon a lease by indenture, if the defendant pleads nil habuit in tenementis, the plaintiff need not reply the estoppel, but may demur; because, the declaration being on the indenture, the estoppel appears on the record (x). But if the plaintiff will not rely on the estoppel, but takes issue on the plea of nil habuit, &c., he waives the estoppel and the jury shall find the truth (y). If to debt on a demise without deed, the defendant (s) Oldershaw v. Holt, 12 A. & E. 590. (t) Gilb. Debt, B. 3. c. 3. (u) Adm. Lewis v. Willis, 1 Wils. 314; but quære, if there has been occupation under the deed; Curtis v. Spitty; and see |