| Ill. | Jun 15, 1856
Foltz had a lease on a lot for two years, ending on the 1st September, 1851, at $50 a year. This lease had expired, at which time the rent became due, by the terms of the lease, deducting the taxes which he had or might pay. He, without any new agreement, or any thing being said or done by either party, held over, until the 8th day of September, 1852, one year and eight days, on a second, when the landlord, Leach, died. There was due, on the 1st September, 1852, one hundred and fifty dollars, for rent, less the taxes paid; and this amount, or the balance so due on settlement with Foltz, as tenant, became assets for the payment of debts. The rent was not due for the current year, from September, 1852, to September, 1853, for which time his lease continued at the former rent and terms, by holding over eight days, without objection from Leach. This accruing rent descended to Leach’s heirs, on his death, as a. chattel real; and with it the administrator has no concern any more than the land in the mean time. Green v. Massie, Ex'r, 13 Ill. R. 364; Baker v. Root, 4 McLean R. 572; Jaques et al. v. Gould et al., 4 Cush. R. 386; Abeel v. Ratcliff, 15 John. R. 506; Jackson ex dem. Wood v. Selmon, 4 Wend. R. 327; Diller v. Roberts, 13 Serg. and Raw. R. 62.
In taxing the account with Foltz, as administrator of Leach, the County Court found a balance due from him, as such administrator, of $365.04. The Circuit Court reduced this, and found a balance of $330.86. We are not able to reach or fix upon either sum, from the evidence in the record. Were we to state an account upon the evidence in the record, and under the principles we here sanction as law, we could only find as assets, the three years’ rent, to 1st September, 1852, at $50 per annum, subject to a deduction of $28.96, paid for taxes, as agreed in the lease he should do; leaving a balance of only $121.04.
I can only conjecture that the Circuit and County Courts arrived at their results by taking into account subsequent rents, and also the sums paid on redemption, &c., from the mortgage sale, and the sum bid at the second sale, under the Garner judgment. 1 need not stop to verify or state the account upon this supposition. It is sufficient to remark, only, that under this petition, neither the County Court, nor the Circuit Court, on appeal from it, had any jurisdiction of these transactions; either of the subsequent rents, the redemption from the first, its sale under the second judgment, or the proceeds of that sale. That is a case between the several judgment creditors, purchasers and Leach’s heirs; and its jurisdiction belongs to the Circuit Court, either at law or in chancery. The County Court may grant an order to sell to pay debts, upon a proper case presented by the administrator; but it is only of such lands as belong to decedent, and without .the power or jurisdiction to investigate and decree titles, in the manner contemplated by, and done in, the orders before us. If relief be sought upon such a state of facts as is shadowed forth here, I presume a bill in equity is the proper course.
The order of amotion of the administrator will be affirmed. Of that, the County Court clearly had jurisdiction, for the causes specified in the order. We are no further able to judge of the sufficiency of the proofs than they are set forth in the record. The administrator’s report claims a credit for a payment, by order of the County Court, to Higgins and Strother, of a counsel fee of $150 ; but no such order is shown. The claim may have been allowed, and stood for payment, pro rata, with other claims; an order of classification and preference is quite another thing. No such order appears, and consequently, the administrator shows, by his own report, an unauthorized preference in payment to these creditors.
It may be said—but the proofs here do not show it—that this payment to Higgins and Strother was made by him as debtor tenant, at the request of Leach, and that he is entitled to set off that payment in settlement of the rent. If this were so, it should have been proven. In the absence of such proof the order of amotion is right.
Judgment reversed and cause remanded for further proceedings, not inconsistent with this opinion.
Judgment reversed.