ton for rent of a two-horse farm due by plaintiff to Alex Guillebeaux, payable on November 1, 1920, the said Alex Guillebeaux having died July 4, 1920. The seizure of the cotton was made November 15, 1920, by the defendant E. B. Sharpton, deputy sheriff, acting under a distress warrant issued by the defendant Clara Guillebeaux, as executrix of the will of Alex Guillebeaux. The plaintiff alleged, in substance, that the seizure was wrongful and unlawful, in that the defendant Clara Guillebeaux, as executrix, had no legal right to distrain for rent falling due after her testator's death. In the answer it was admitted that the defendant Clara Guillebeaux, "in distraining said cotton, acted in her official capacity as executrix of the last will and testament of the said Alex Guillebeaux, deceased." On the trial, in response to a question from the court, Clara Guillebeaux, the executrix, testified that Alex Guillebeaux had left his property to be divided between his children and herself, the wife, but had left the rent to her. Upon the foregoing undisputed facts as to the only issues raised, the presiding judge refused a motion for the direction of a verdict in favor of the plaintiff, and directed a verdict for the defendants. From judgment thereon, the plaintiff appeals.

Executors and

administrators

The sole question presented is whether the personal representative of a deceased landlord has the right to assert and enforce the remedy of distress, for rent accruing or falling due after the death of the landlord. Investigation reveals, contrary to the writer's first impression, that the distress for rent law in this jurisdiction requires that the question be answered in the negative. Even for rent accrued or due at the date of the decedent's death,-a chose in action, the title to which unquestionably vests in the personal representative, an executor or administrator may not distrain. In the case of Bagwell v. Jamison, 25 S. C.

-right to maintain.

L. (Cheves) 249 (1840), the law in this state was thus declared: "At common law, neither the heirs, executors, nor administrators of a man seised and entitled to rents had any remedy for the arrearages incurred in the lifetime of the owner of such rents. 1.Co. Litt. 162, a. For remedy whereof the Statute 32 Hen. VIII. chap. 37, provided that the executors and administrators might distrain for rents due their testator or intestate, at the time of the death, upon the land charged with the rent; and a later statute, in England, in the time of William IV., has been found necessary further to extend this right of the representatives of a deceased landlord.

But

the Statute of 32 Hen. VIII. has never been made of force here, either expressly by the legislature, or by necessary implications; nor am I aware of any judicial decision by which it has been held to be of force, as other English statutes have been, especially on the subject of rent; and sometimes, perhaps, without sufficient reason. The remedy by distress is a rigorous proceeding, often harsh in its operation, not congenial to the spirit of our institutions and government, and not to be extended beyond the clear and settled limits, except by express enactments of the legislature."

That the Statute 32 Hen. VIII. chap. 37, extending the right of distress for rent to and against executors or administrators, could not be regarded as of force in this state, was again expressly declared in Salvo v. Schmidt, 29 S. C. L. (2 Speers) 512 (1844), in which case Judge Butler, as the organ of the court, said: "The statute never has been adopted expressly by any legislative act of South Carolina. It is not enumerated as one of the English statutes that have been made of force here; and in the case of Bagwell v. Jamison, Judge Earle says: 'It never has been adopted here, either expressly by the legislature, or by necessary implication;' and I am under the impression, though he does not expressly say so, that Judge

Wardlaw, in his thorough examination of the English statutes in relation to rents, in the case of Rogers v. Brown, 28 S. C. L. (1 Speers), 285, came to the same conclusion.' See Rogers v. Brown, 28 S. C. L. (1 Speers) 283; 24 Cyc. 1293.

The law was thus clearly and expressly announced has not, so far as we are aware, been disapproved or questioned in any subsequent adjudication. In Reid v. Stoney, 32 S. C. L. (1 Strobh.) 182, where the will vested the executor with power to lease lands, to receive the rents, and to divide them, the opinion was expressed by Judge Evans that the executor would have a right to distrain; but the expression was really an obiter dictum, as the right of the executor to distrain was not there involved. In the case of Stewart v. Gregg, 42 S. C. 392, 20 S. E. 193, in holding that a purchaser of premises under lease could not distrain for rent due him after his purchase, in the absence of evidence that the tenant had attorned to him, Mr. Justice McIver said: "The remedy by distress, like an attachment, is a very stringent proceeding, and the courts will always require a strict compliance with the requirements of the law. Indeed, there is more reason for this in a case of distress than in an attachment, for in the former the proceeding is by the act of the party interested, while in the latter the interposition of an officer of the court is required."

See Jacks v. Smith, 1 S. C. L. (1 Bay) 315; Smith v. Charleston Dist. 1 S. C. L. (1 Bay) 443. If, therefore, in the face of the very clear declaration of the law contained in the early decisions referred to, the legislature of the state has not seen fit to confer upon executors and administrators the right to distrain for rent due their decedents, the presumption must be indulged that the right has been deliberately and advisedly withheld by the lawmaking power of the state. Possibly a reason for not extending this extraordinary remedy to an executor is to be found in the consideration

that a landlord, because of his ownership of the property, may generally be supposed to be financially responsible, whereas such financial responsibility in an executor, who usually acts without bond, is not to be presumed. We have found no statute conferring this authority, either in express terms or by necessary implication. See generally, as to statutory changes, Bender v. Ross, 51 S. C. 217, 27 S. E. 627, 28 S. E. 401. In the circumstances, the law as declared in Bagwell v. Jamison, supra, should be changed, if at all, by the legislature, and not by the courts.

If the personal representative has no authority to distrain for rent due at the landlord's death, it follows that he has no such authority as to rents accruing after the decedent's death. Even the enabling provisions of 32 Hen. VIII. chap. 37, seem to have extended merely to rent which fell due before the decedent's death. Wright v. Williams, 5 Cow. 338. The foregoing conclusion follows not only for the reason that the right of distraining for rent has not been conferred on the personal representative of the landlord, but for the further reason that the common-law rule that, if the landlord dies intestate before

the

to rent.

rent becomes Defense-right due, the rent goes

to the heir, and, if the landlord dies testate, the rent goes to the devisee, still prevails in this state. In the case of Huff v. Latimer, 33 S. C. 255, 11 S. E. 758, it was expressly held that the statute, now § 3633, Civil Code 1912, providing that crops on lands of a person dying after March 1st in any year should be assets in the hands of the personal representative of the deceased, did not abrogate or modify the commonlaw rule as to rents. Hence, in the case at bar, in the absence of power expressly conferred by the will, the right to collect and enforce the claim for rent was in the devisees, and not in the executrix. Huff v. Latimer, supra.

If, however, the rent in question

II. b. continued.

24. Rhode Island, 40. 25. South Carolina, 40. 26. Tennessee, 40.

27. Virginia, 41.

28. West Virginia, 41.

29. England, 41.

III. Rents accruing before death of land

lord:

a. Where landlord dies intestate:

1. United States, 41.

2. Alabama, 41.

3. Connecticut, 41.

4. Georgia, 41.

5. Illinois, 41.

6. Indiana, 42.

7. Iowa, 42.

8. Kentucky, 42.

9. Maine, 42.

1. Introductory.

This annotation is concerned solely with the decisions in reference to the question as to who has the legal right to receive the rents of the lessor's lands, after his death, so as to discharge the tenant from liability for the rent which he owes. Cases where the rent debt arises from lease or occupancy commencing on the lands after the owner's death are excluded.

The common-law rule, as shown by the cases cited throughout the annotation, is that all rents accruing after the death of the landowner pass with the land to his heir or devisee, while rents accrued at the time of his death are personalty, and go to the personal representative as part of the estate. But this rule is not only subject to modification by will, but it has, in some jurisdictions, been modified by statute. Because of the variety of these modifications, which cannot be assimilated to a general rule, it has been deemed best to present the subject by jurisdictions.

11. Rents accruing after death of landlord.

a. Where landlord dies intestate.

1. United States.

Where the land of an intestate landlord was sold by order of court to satisfy debts, it has been held that the heirs, and not the creditors, were entitled to the rent falling due from the death of their ancestor to the day of the sale. Kurtz v. Hollingshead

An Alabama Statute of 1839 (Clay's Dig. 199, § 36) allowed the administrator to sue for or collect the rents of the real estate of which the intestate landlord died seised, in case the personal estate was insufficient to pay the debts. However, it has been held that the failure of the personal representative to assert or exercise the statutory power entitled the heir to the rents, as at common law. Masterson v. Girard, supra.

So, in Branch Bank v. Fry (1853) 23 Ala. 770, it was held that even though the decedent's estate was insolvent, and the personal representative had a right to collect or sue for the rents of the real estate under the Statute of 1839, the heirs could receive or recover the accruing rents after the death of their ancestor, in the absence of objection or the assertion of the statutory right on the part of the personal representatives.

In Harkins v. Pope (1846) 10 Ala. 493, it appeared that the intestate leased his real estate, and that the term did not expire until after his death. The language of the court was

as follows: "It can scarcely be questioned, if the decedent, during his lifetime, had leased the estate for a term of years not expired at his death, the administrator, after notice, would be entitled to the rents in preference to the heir. It is impossible to suppose the absurdity that the heirs should have the rents, when the reversion in the land might, under other statutes, be sold by the administrator. . . The landlord himself, if living, might have a recovery for use and occupation; this right passes to, and may be enforced by, his administrator. Whether the tenant might not be excused, by paying the rent, after it accrued, to the heir, in the absence of notice from the executor, is a matter which we notice now only to show it is not determined. . The administrator is a proper party, whether the rents accrued before or after the death of the intestate."

thus suspend the heir's or devisee's rights, the personal representative must actually take possession, or assert his right."

It was said, by way of dictum, in Upchurch v. Norsworthy (1847) 12 Ala. 532, that an administrator may, in some cases, receive rent accruing after the death of his intestate. There was a like dictum in Long v. McDougald (1853) 23 Ala. 413.

In Palmer v. Steiner (1880) 68 Ala. 400, the record showed that the plaintiff, as administrator, brought action. to recover the rents which had accrued on the intestate's land leased during his lifetime, and which became due and payable after his death. The personal property of the estate was insufficient for the payment of debts. The court said: "The rule of the common law is that, if a lessor dies, rent which has accrued, which is due and payable, passes to the exec

utor or administrator; rent subsequently accruing follows the reversion, and belongs to the heir. The rule here is modified by the statutes which confer on the personal representative power to intercept the descent to the heir, to take rents accruing, and to rent or sell the lands, when necessary for the payment of debts.

. When rent accruing is claimed by the personal representative, he has the same right and title to it which he has to other choses in action of the testator or intestate; he takes it as he would take an ordinary debt contracted in the life of the deceased, but falling due after his death. He simply succeeds to the right of

his intestate."

It was held in Mayer v. Kornegay (1909) 163 Ala. 371, 136 Am. St. Rep. 79, 50 So. 880, that the personal representative could not intercept accruing rents unless the debts of the estate were sufficient to become a charge on the lands. Otherwise, the rents and the lands passed exclusively to the heirs.

In Patapsco Guano Co. v. Ballard (1897) 107 Ala. 710, 54 Am. St. Rep. 131, 19 So. 777, wherein it appeared that the lands of the intestate were encumbered with a mortgage and the personal property was insufficient to discharge the lien, it was held that the administratrix was entitled to collect accruing rents and pay them over to the mortgagee until the debt was discharged.

In Smith v. Smith (1848) 13 Ala. 329, and in Smith v. Wiley (1853) 22 Ala. 396, 58 Am. Dec. 262, it was held that the heirs were entitled to the rent of land left by the intestate in the state of Mississippi, and such rents constituted no part of the assets of the estate.

3. Arkansas.

In Stewart v. Smiley (1885) 46 Ark. 373, it was shown that the administrator de bonis non of a landlord attached the tenant's crops, on his failure to pay rent falling due after the death of the landlord. The court held that the administrator had no right to the rent, saying that the lands