GOLDTHWAITE, J.-
1. In the mode this case is put before the court, it seems somewhat complicated, and our first object will be to ascertain precisely the purpose to be reached by the bill. It appears, as between the parties themselves, the title of the defendant, Pepe, to two thirds, and that of Harkins, Brahan and Suffrance to one third of the hotel, was admitted, and the former leased from the latter, during the *498lifetime of Suffrance, their portion, at a specific rent, for the year 1840, and held possession after the expiration of that year, without any new agreement for rent, until the building was destroyed, towards the close of the year 1841. A portion of the rent for the first year, and the whole of that for the second being unpaid, the first question which arises is, whether the defendant, Pope, is liable to pay rent for the second year, according to the agreement for the first ? And the second is, whether the portion coming to Suffrance goes to his administrators or to his heirs ?
The common law idea, that rent is only due when there is a demise, has long since been changed, both in England and this country by statutes authorizing recoveries for use and occupation. Our statute uses the terms reasonable satisfaction, (Dig. 505, $ 1,) but is presumed to be not materially different from other States. In New York, the decisions are uniform, that where there is a lease for a certain annual rent, and the tenant holds over without any new agreement as to the rent, the law implies that he holds from year to year, at the original rent. [Abut v. Abut, 15 Johns. 505" court="N.Y. Sup. Ct." date_filed="1818-10-15" href="https://app.midpage.ai/document/abeel--abeel-v-radcliff-5474071?utm_source=webapp" opinion_id="5474071">15 John. 505; Everteen v. Sawyer, 2 Wend. 507" court="N.Y. Sup. Ct." date_filed="1829-05-15" href="https://app.midpage.ai/document/evertsen-v-sawyer-5513111?utm_source=webapp" opinion_id="5513111">2 Wend. 507.] It is not essential to declare in this cause, whether the agreement to pay the same amount of rent will be presumed, but the cases cited are conclusive, that under such circumstances, a continuance of the tenancy, and the obligation to pay rent may be inferred.
2. In regard to the second question, it is urged, our statute which authorizes administrators and executors to rent, at public outcry, the real estate of any decedent, until the final settlement of the estate, (Dig. 199, § 36,) is merely the creation of a power, and does not change the course of descent. The object of this statute seems to be to give the administrator the power to rent the real estate of which the decedent died possessed, and in our judgment it would be a most unreasonable construction to confine the recovery of rent by an administrator, to those cases only in which he exercises the power. It cannot be supposed the legislature intended, as between a former tenant and the administrator, that the latter should either have no power to evict or recover rent. [In Philips v. Gray, 1 Ala. 226" court="Ala." date_filed="1840-01-15" href="https://app.midpage.ai/document/philips-v-gray-6501270?utm_source=webapp" opinion_id="6501270">1 Ala. Rep. 226, although we held this act *499bad no retrospective operation, we considered it as giving the right to the administrator to maintain an action to regain or recover the possession of his intestate, as without this possession there could be no renting. As between the administrator and the heir, it may be possible the latter is not responsible for rents received, or damages, until the power is exercised, on the principle, that in law he is the owner, and may lawfully expend the usufruct, until advised of the necessity to apply it otherwise, but none of these reasons have application to tenants holding over. So too 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 heir should have the rents, when the reversion in the land might, under other statutes, be sold by the administrator. We will not, however, undertake- to determine in advance the many questions which must arise under this statute. It is sufficient to say, in this particular case, that as 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.
What we have said, disposes of so much of the bill as concerns the rents, and shows, that in this connection the administrator is a proper party, whether the rents accrued before or after the death of the intestate.
3. The remaining portion of the bill, is that which relates to the division or sale of the hotel lot, and the property acquired by Pope from Pearsoll, in payment of the agreement for the lease to be given to him for five years. Considered as a bill for partition merely, a court of chancery has no power to decree a sale of all the interests, because the property is not susceptible of division; [Delony v. Walker, 9 Porter, 97;] but we think it clear, the complainants have the right, as between themselves arid Pope, to have a division of the hotel lot, and to be placed in possession- of the parts respectively owned by those in severalty. In this part of the bill,' *500it is evident the administrator has the right to join, under the principles already ascertained, inasmuch^ as when the estate is severed he may rent it under the statute. The heirs and widpw seem to be proper parties, as they have the ultimate right. It is unnecessary to determine this however, as none of the objections taken in the court below, or those adjudged, raise the point for consideration here. And the same cause prevents us from now pronouncing on the rights of the parties complainant to a division of the property received from Pearsoll.
4. In relation to the supposed defect of the bill, in not setting out the title of the complainants, we think that is sufficiently stated, under the circumstances of the case. Under the deed exhibited, as executed by Posey, it is clear they claim a fee simple, and the act of Pope in becoming a tenant under the grantees in this deed, relieves them, or those having their title, from stating any other.
On the whole, we are satisfied the grounds stated in the demurrer, are none of them sustainable, and therefore, without inquiring whether there are not defects in the bill, our judgment is, that the decree be reversed, and the cause remanded.