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ton for rent of a two-horse farm due L. (Cheves) 249 (1840), the law in by plaintiff to Alex Guillebeaux, this state was thus declared: “At payable on November 1, 1920, the common law, neither the heirs, exsaid Alex Guillebeaux having died ecutors,

ecutors, nor administrators of a July 4, 1920. The seizure of the cot- man seised and entitled to rents had ton was made November 15, 1920, any remedy for the arrearages inby the defendant E. B. Sharpton, curred in the lifetime of the owner deputy sheriff, acting under a dis- of such rents. 1. Co. Litt. 162, a. tress warrant issued by the defend- For remedy whereof the Statute 32 ant Clara Guillebeaux, as executrix Hen. VIII, chap. 37, provided that of the will of Alex Guillebeaux. The the executors and administrators plaintiff alleged, in substance, that might distrain for rents due their the seizure was wrongful and un- testator or intestate, at the time of lawful, in that the defendant Clara the death, upon the land charged Guillebeaux, as executrix, had no with the rent; and a later statute, in legal right to distrain for rent fall- England, in the time of William IV., ing due after her testator's death. has been found necessary further to In the answer it was admitted that extend this right of the representthe defendant Clara Guillebeaux, "in atives of a deceased landlord. But distraining said cotton, acted in her the Statute of 32 Hen. VIII. has official capacity as executrix of the never been made of force here, eilast will and testament of the said ther expressly by the legislature, or Alex Guillebeaux, deceased." On by necessary implications; nor am the trial, in response to a question I aware of any judicial decision by from the court, Clara Guillebeaux, which it has been held to be of force, the executrix, testified that Alex as other English statutes have been, Guillebeaux had left his property to especially on the subject of rent; be divided between his children and and sometimes, perhaps, without herself, the wife, but had left the sufficient reason. The remedy by rent to her. Upon the foregoing un- distress is a rigorous proceeding, disputed facts as to the only issues often harsh in its operation, not raised, the presiding judge refused congenial to the spirit of our instia motion for the direction of a ver- tutions and government, and not to dict in favor of the plaintiff, and di- be extended beyond the clear and rected a verdict for the defendants. settled limits, except by express enFrom judgment thereon, the plain- actments of the legislature.' tiff appeals.

That the Statute 32 Hen. VIII. The sole question presented is chap. 37, extending the right of diswhether the personal representative tress for rent to and against execuof a deceased landlord has the right tors or administrators, could not be to assert and enforce the remedy of regarded as of force in this state, distress, for rent accruing or falling was again expressly declared in due after the death of the landlord. Salvo v. Schmidt, 29 S. C. L. (2 Investigation reveals, contrary to Speers) 512 (1844), in which case

the writer's first im Judge Butler, as the organ of the Executors and pression, that the court, said: “The statute never has administratorsdistress for rent law in this jurisdic- been adopted expressly by any legisTinht to main- tion requires that lative act of South Carolina. It is

the question be an- not enumerated as one of the Engswered in the negative. Even for lish statutes that have been made of rent accrued or due at the date of force here; and in the case of Bagthe decedent's death,-a chose in ac- well v. Jamison, Judge Earle says: tion, the title to which unquestion- 'It never has been adopted here, eiably vests in the personal repre- ther expressly by the legislature, or sentative,—an executor or admin- by necessary implication;' and I am istrator may not distrain. In the under the impression, though he case of Bagwell v. Jamison, 25 S. C. does not expressly say so, that Judge ( S. C. —, 116 S. E. 443.) Wardlaw, in his thorough examina- that a landlord, because of his owntion of the English statutes in rela- ership of the property, may generaltion to rents, in the case of Rogers ly be supposed to be financially rev. Brown, 28 S. C. L. (1 Speers), sponsible, whereas such financial re285, came to the same conclusion." sponsibility in an . executor, who See Rogers v. Brown, 28 S. C. L. usually acts without bond, is not to (1 Speers) 283; 24 Cyc. 1293. be presumed. We have found no

The law was thus clearly and ex- statute conferring this authority, pressly announced has not, so far as either in express terms or by neceswe are aware, been disapproved or sary implication. See generally, as questioned in any subsequent adju- to statutory changes, Bender v. dication. In Reid v. Stoney, 32 s. C. Ross, 51 S. C. 217, 27 S. E. 627, 28 L. (1 Strobh.) 182, where the will S. E. 401. In the circumstances, the vested the executor with power to law as declared in Bagwell v. Jamilease lands, to receive the rents, and son, supra, should be changed, if at to divide them, the opinion was ex- all, by the legislature, and not by pressed by Judge Evans that the the courts. executor would have a right to dis- If the personal representative has train; but the expression was really no authority to distrain for rent due an obiter dictum, as the right of the at the landlord's death, it follows executor to distrain was not there that he has no such authority as to involved. In the case of Stewart v. rents accruing after the decedent's Gregg, 42 S. C. 392, 20 S. E. 193, death. Even the enabling proviin holding that a purchaser of prem- sions of 32 Hen. VIII. chap. 37, seem ises under lease could not distrain to have extended merely to rent for rent due him after his purchase, which fell due before the decedent's in the absence of evidence that the death. Wright v. Williams, 5 Cow. tenant had attorned to him, Mr. 338. The foregoing conclusion folJustice McIver said: “The remedy lows not only for the reason that the by distress, like an attachment, is a right of distraining for rent has not very stringent proceeding, and the been conferred on the personal repcourts will always require a strict resentative of the landlord, but for compliance with the requirements the further reason that the comof the law. Indeed, there is more mon-law rule that, if the landlord reason for this in a case of distress dies intestate before

Defense-right than in an attachment, for in the the rent becomes former the proceeding is by the act due, the rent goes of the party interested, while in the to the heir, and, if the landlord dies latter the interposition of an officer testate, the rent goes to the devisee, of the court is required.”

still prevails in this state. In the See Jacks v. Smith, 1 S. C. L. (1 case of Huff v. Latimer, 33 S. C. Bay) 315; Smith v. Charleston Dist. 255, 11 S. E. 758, it was expressly 1 S. C. L. (1 Bay) 443. If, there- held that the statute, now § 3633, fore, in the face of the very clear Civil Code 1912, providing that declaration of the law contained in crops on lands of a person dying aftthe early decisions referred to, the er March 1st in any year should be legislature of the state has not seen assets in the hands of the personal fit to confer upon executors and ad- representative of the deceased, did ministrators the right to distrain not abrogate or modify the commonfor rent due their decedents, the law rule as to rents. Hence, in the presumption must be indulged that case at bar, in the absence of power the right has been deliberately and expressly conferred by the will, the advisedly withheld by the lawmak- right to collect and enforce the claim ing power of the state. Possibly a for rent was in the devisees, and not reason for not extending this ex- in the executrix. Huff v. Latimer, traordinary remedy to an executor supra. is to be found in the consideration If, however, the rent in question

to rent.

rent.

was "left" to the executrix, Clara in action it would seem that she Guillebeaux, as a legatee under the would have been in will, the right to

Landlord and no better position to

tenant-distress Executors and administratorscollect it as an asset assert and enforce -right of

assignee. right to collect of the estate and ap- the remedy of dis

ply it upon the leg- tress, since “mere assignment of acy was possessed by her as execu- the rent unpaid does not carry the trix, and not as legatee. Unques- right to distrain." 24 Cyc. 1291; tionably, she had, in that state of the Hutsell v. Deposit Bank, 102 Ky. facts, as personal representative of 410, 39 L.R.A. 403, 43 S. W. 469. the deceased landlord, the right to And see, generally, Stewart v. collect and enforce the claim for Gregg, supra. rent, but not, as we have seen, the The plaintiff's motion for a diright to resort to the landlord's rem- rected verdict should have been edy of distress. It is admitted that granted. The judgment of the Cirshe distrained the cotton as execu- cuit Court is reversed, and the cause trix, and the validity of the seizure

remanded for entry of judgment for must be tested by her right to act

plaintiff under Rule 27 of this court in that capacity. Even if the claim

(90 S. E. xii). for rent could be considered as hav

Reversed. ing been transferred and assigned by herself as executrix, to herself as Gary, Ch. J., and Watts, Fraser, legatee, as assignee of such a chose and Cothran, JJ., concur.

ANNOTATION.

Who entitled to rent on death of landlord.

I. Introductory, 5.
II. Rents accruing after death of land-

II. &-continued.

lord: a. Where landlord dies intestate:

1. United States, 5.
2. Alabama, 5.
3. Arkansas, 6.
4. California, 7.
5. Colorado, 7.
6. Connecticut, 7.
7. Delaware, 8.
8. Florida, 8.
9. Georgia, 8.
10. Illinois, 8.
11. Indiana, 9.
12. Iowa, 10.
13. Kansas, 11.
14. Kentucky, 12.
15. Maine, 13.
16. Maryland, 14.
17. Massachusetts, 14.
18. Michigan, 15.
19. Minnesota, 16.
20. Mississippi, 16.
21. Missouri, 17.
22. New Hampshire, 18.
23. New Jersey, 19.
24. New York, 19.
25. North Carolina, 20.
26. Ohio, 20.
27. Oklahoma, 21.
28. Pennsylvania, 21.

29. Rhode Island, 22.
30. South Carolina, 23.
31. Tennessee, 23.
32. Texas, 23.
33. West Virginia, 23.
34. Wisconsin, 23.

35. England, 24.
b. Where landlord dies testate:

1. United States, 27. 2. Alabama, 27. 3. California, 27. 4. Colorado, 29. 5. Connecticut, 29. 6. Florida, 29. 7. Georgia, 29. 8. Illinois, 30. 9. Indiana, 31. 10. Kentucky, 32. 11. Maine, 33. 12. Maryland, 33. 13. Massachusetts, 34. 14. Minnesota, 35. 15. Mississippi, 35. 16. Missouri, 35. 17. Montana, 35. 18. New Hampshire, 35. 19. New Jersey, 36. 20. New York, 36. 21. North Carolina, 38. 22. Ohio, 38. 23. Pennsylvania, 38.

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.

III. a-continued.

10. Massachusetts, 42.
11. Missouri, 42.
12. New Jersey, 42.
13. New York, 43.
14. Ohio, 43.
15. Pennsylvania, 43.
16. South Carolina, 43.
17. Tennessee, 43.

18. England, 43.
b. Where landlord dies testate:

1. United States, 44.
2. Georgia, 44.
3. Indiana, 44.
4. Kentucky, 45.
5. New York, 45.
6. North Carolina, 45.
7. South Carolina, 45.
8. England, 45.

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. II. Rents acoruing after death of land

lord.

(1831) 4 Cranch, C. C. 180, Fed. Cas. No. 7,953.

2. Alabama. In the absence of statute in Alabama, the common-law rule was that the heirs succeeded to the rents of the inherited estate, and could sue for the rents which fell due after the death of their ancestor. Masterson v. Girard (1846) 10 Ala. 60.

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

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

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."

So, in Gayle v. Johnson (1885) 80 Ala. 388, it was said: “With the title passes the right to the possession and after-accruing rents and profits, subject to the statutory powers of the personal representative. For the purposes of administration

the personal representative may receive accruing rents;

but to 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 de. scent 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.

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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

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