No. 2455. Book 4, tit. 2, chap. 1, sec. No. 2455. part of all the grain of every kind, and of all the hemp, flax, potatoes, apples, fruit, and other produce of whatever kind that should be planted, raised, sown, or produced, on or out of the demised premises;" the landlord cannot perhaps distrain at all, on account of the uncertainty.(a) Art. 2.-Of the amount of the rent for which a distress may be made. 2455. With respect to the amount of the rent for which the lessor may make a distress, it may be laid down, as a general rule, that whatever can properly be considered as a part of the rent, may be distrained for, without considering the particular mode in which it is agreed to be paid; so that where a person entered into possession of certain premises, subject to the approbation of the landlord, which was afterward obtained, by agreeing to pay rent in advance, from the time he came into possession, it was determined, in England, that the landlord might distrain for the whole sum accrued before and after the agreement.(b) No distress can be made for interest for rent ;(c) but it may be recovered from the tenant by action, unless under particular circumstances. (d) Nor can a distress be taken for a nomine pænæ, unless a special power to distrain be annexed to it by deed.(e) By nomine pana is meant the name of a penalty (a) Warren v. Forney, 13 S. & R. 52. But see Reinhart v. Olwine, 5 W. & S. 157. (b) Cowp. 784. In New York it was determined that an agreement that the rent should be paid in advance, is a personal covenant on which an action lies, but not distress. 1 John. 384. The supreme court of Pennsylvania declined to decide this point, as it was not necessarily before them. Diller v. Roberts, 13 S. & R. 60. See Martin's Appeal, 5 W. & S. 221. (c) Bantleon v. Smith, 2 Binn. 146. (d) Obermyer v. Nichols, 6 Binn. 159. (e) Vide Popham, 92. No. 2156. Book 4, tit. 2, chap. 1, sec. 4, § 2, art. 1, 2, 3. No. 2458. incurred by the lessee to the lessor, for the non-payment of rent on the day appointed by the lease or agreement for its payment;(a) it is usually a gross sum of money, though it may be any thing else, appointed to be paid by the tenant to the reversioner, if the duties are in arrear, in addition to the duties themselves.(b) § 2. Of the persons entitled to make a distress. Art. 1.-By tenant in severalty. 2456. When the landlord is sole owner of the estate, out of which the rent is payable to him, he may of course distrain in his own right. He must then have the right of reversion, for if he has parted with that, he has no title.(c) Art. 2.-By joint tenants. 2457. Joint tenants, when convenient, should all join in making the distress, and this is the better way, as it removes difficulties which may afterward arise. Still, however, as they have, each of them, an estate in every part of the rent, each may distrain alone for the whole, although he must afterward account with his companions for their respective shares of the rent.(d) Art. 3.-By tenants in common. 2458. Tenants in common do not, like joint tenants, hold by one title and by one right, but by different titles, and have several estates: one cannot, therefore, distrain for the whole of the rent, for if he did, he would distrain for that to which he has no title; each should, therefore, distrain separately for his share. (e) But when from necessity this cannot be done, as where (a) 2 Litt. Ab. 221. (d) 3 Salk. 204. (e) Litt. s. 317. No. 2159. Book 4, tit. 2, chap. 1, sec. 4, § 2, art. 4. No. 2459. the thing due is a horse, which is incapable of division, all the tenants in common must join in the distress. (a) Each tenant in common is entitled to receive from the lessee his proportion of the rent; and, therefore, when a person holding under two tenants in common, paid the whole rent to one of them, after having received a notice to the contrary from the other, it was held the party who gave the notice might afterward distrain.(b) As tenants in common have no original privity of estate between them, as to their respective shares, one may lease his part of the land to the other, rendering rent, for which a distress may be made, as if the land had been demised to a stranger. (c) Art. 4.-By husband and wife. 2459. At common law, in cases of distrainable rents, the distress was incident to the reversion, except in the case of a rent charge. And as in all cases, where the wife has an estate of freehold only, or of freehold of inheritance, the immediate freehold of such lands in leases is not in the husband alone, but in the husband and wife, in right of the wife; when distress is made in respect of such reversion, it ought to be joint, as following the nature of their estate, whether the rent accrued before or after the coverture.(d) But where the reversion is a chattel real, as if a woman be possessed of a term of twenty years, and before coverture makes a lease for ten years, the husband has a right during the coverture to vest this chattel in himself, by reducing it into possession, and in that case, as the wife would have no right, he must alone distrain for the rent. (a) Co. Litt. 197, a. (6) Harrison v. Barnby, 5 T. R. 246. (d) Bro. Avowry, pl. 70. No. 2460. Book 4, tit. 2, chap. 1, sec. 4, § 2, art. 5, 6, 7. No. 2462. Art. 5.-By tenant by the curtesy. 2460. A tenant by the curtesy, has an estate of freehold in the lands of his wife, and in contemplation of law, a reversion on all lands of the wife leased for years or lives, and may distrain at common law for rents reserved thereon. The chattels real of the wife on her death vest absolutely in the husband, and if out of such chattel real a rent is payable, he alone is entitled to distrain. Art. 6.-By tenant in dower. 2461. A woman may be endowed of rent as well as of land; if, therefore, a husband, tenant in fee, make a lease for years, reserving rent, and die, his widow shall be endowed of one-third part of the reversion by metes and bounds, together with a third part of the rent. (a) The rent in this case is apportioned by the act of law, and therefore if the widow be endowed of a third part of a rent in fee, she may distrain for that third part, and the heir shall have the right to distrain for the other part of the rent. (b) Art. 7.-By tenant for life. 2462. A tenant for life, whether for his own life or that of another, has an estate of freehold, and when he makes a lease for years, reserving rent, he is entitled to distrain upon the lessee. It may here be remarked, that, at common law, if a tenant for life made a lease for years, if he should so long live, at a certain rent, payable quarterly, and died before the quarter-day, the tenant was discharged of that fraction of a quarter's rent by the act of God, (c) for no one (a) Co. Litt. 32, a. (b) Bro. Ab. Avowry, pl. 139. No. 2463. Book 4, tit. 2, chap. 1, sec. 4, § 2, art. 8, 9. No. 2460. was entitled to recover it; but this was remedied by statute of 11 Geo. II., c. 19, s. 15, which gives an action to the executors or administrators of the tenant for life; and this equitable provision has been adopted in perhaps all the states of the Union. Art. 8.-By the heir or devisee. 2463.-1. The heir when entitled to the reversion may distrain for rent arrear which becomes due after the ancestor's death; and in order to ascertain whether the rent became due before or after the death of the ancestor, we must recollect that the rent does not become due, for this purpose, until the last minute of the natural day, and if the ancestor die between sunset and midnight, the heir and not the executor shall have the rent. (a) And if the rent be payable at one of two periods, at the choice of the lessee, and the lessor die between them, the rent being unpaid, it will go to the heir.(b) 2464.-2. Devisees, like heirs, may distrain in respect of their reversionary estate; for by a devise of the reversion, the rent will pass with its incidents.(c) Art. 9.-By trustees and guardians. 2465.-1. Trustees in whom the legal estate is vested, as trustees of a married woman, or assignees of an insolvent, may of course distrain in respect of their legal estates, in the same manner as if they were beneficially interested therein. 2466.-2. Guardians may make leases of their ward's lands in their own names, which will be good (a) 1 Saund. 287. For the purpose of making a reëntry, the rent is considered due at sunset. Com. Dig. Rent, D 7; Bac. Ab. Rent, I; Jackson v. Harrison, 17 John. 66. |