Leonard v. Burgess

| Wis. | Jun 15, 1862

By the Court,

Cole, J.

As a general proposition it is undoubtedly true, that the grant of a reversion carries with it the rent due and accruing thereafter by the terms of the lease. The rent is usually considered merely as an incident to the reversion and passing with it as a part of the realty, when the grant is unqualified; and whoever owns the reversion when the rent falls due, is entitled to receive the entire sum. This doctrine is very well settled, and is elementary. Sometimes the reversion descends to the several heirs, or the lessor grants a part of the lands to one person, or the whole to several persons, and thereby the necessity for an apportionment of the rent between different owners arises. See cases cited in the notes, 1 Washb. Real Property, p. 337. But still there would seem to be no difficulty, in principle or reason, in separating the rent from the reversion by granting the land and reserving the rent, or by granting the rent and retaining the reversion ; and the authorities fully recognize and give effect to such alienations. Crosby v. Loop, 13 Ill., 625" court="Ill." date_filed="1852-06-15" href="https://app.midpage.ai/document/crosby-v-loop-6947760?utm_source=webapp" opinion_id="6947760">13 Ill., 625; Van Rensselaer v. Hays, 19 N.Y., 68" court="NY" date_filed="1859-03-05" href="https://app.midpage.ai/document/van-rensselaer-v--hays-3577118?utm_source=webapp" opinion_id="3577118">19 N. Y., 68; McMurphy v. Minot, 4 N. H., 251; Willard v. Tillman, 2 Hill, 274; Kendall v Carland, 5 Cushing, 74; Childs v. Clark, 3 Barb. Ch., 52" court="None" date_filed="1848-02-21" href="https://app.midpage.ai/document/childs-v-clark-5549691?utm_source=webapp" opinion_id="5549691">3 Barb. Ch., 52. These authorities conclusively show that rent is not inseparable from the reversion, but that it may be severed and granted to one person while the reversion is conveyed to another. The question then arises, Was that done in this case ? If this question is answered in the affirmative, it disposes of all that is material to be considered on this appeal. Does then the evidence show that the rent was severed from the reversion, and assigned to pay the order sued on ? We think it does.

It appears from the case, that in December, 1854, Peter Myers owned an undivided half, and' A. Hyatt Smith and the appellant each owned an undivided quarter, of a tavern stand, as tenants in common. At this time Smith and Myers leased their interests to the appellant for the term of two years, at an annual rent, for the whole premises, of $1,000, payable at the end of each year. In May, 1855, Smith drew his order, the one sued on, on Burgess in favor of Leonard & Tiernay, or bearer, for $241.55, requesting him to pay the order and charge the same to the account of rent as it should become due. This order was presented to the appellant, and accepted by him, although the rent to pay the same was not due. In August, 1856, Smith conveyed his interest in the property to Myers, who now claims three-quarters of the rent falling due in December, 1856.

How we are of the opinion that-Smith, by giving his order for the rent, made a separation of it from the reversion, and assigned it to the holder of the order to the amount thereof. Such, it seems to us, is the effect which must be given to the transaction. It was an assignment by Smith of the rent to become due. The giving the order and the acceptance of it by the tenant was a severance of the rent from the reversion, and it thereafter became the duty of the tenant to pay the rent to the holder of the order until it was discharged. If the grantee of the reversion had had no knowledge that there had been a severance of the rent, he might not, perhaps, have been bound by it. But we are satisfied that he took the reversion with full notice of this fact. Smith himself testifies, that at the time he conveyed the property to Myers he informed him of this order. He further says, in substance, that it was expressly understood between him and Myers that the order was to be paid out of the accruing rent, and that the remainder of the rent should go with the reversion. Myers contradicts Smith, in his last statement, and says that he had a written contract from Smith assigning him all the rent to become due. He does not however deny that he had notice of the order. And if he had that notice, it is quite immaterial whether he took a written contract from Smith assigning him the rent; because Smith had already assigned it to another. So that the grantee of the reversion had no right to compel the appellant, under the circumstances, to pay the rent to him; and he should not have paid it. Of course, if the rent had not been separated from the reversion, the relation of the parties would be materially different. Then the grántee would have a right to receive the rent, and the tenant could not resist his claim. But now it is otherwise. The tenant knew of the severance and assignment of the rent by the order. He accepted the order, agreeing to pay the rent to the holder as it became due. He cannot now be relieved from the liability.

It is not considered necessary to notice in detail the exceptions taken to the rulings of the court on the trial, or to the instructions given the jury. If there were any errors committed, they become quite immaterial in the view taken of the cause. The appellant could not have been prejudiced by them. We are satisfied that substantial justice was done and the judgment of the circuit court must be affirmed.

Judgment affirmed.