rеviewing the facts found to be established, delivered the opinion of the court:
This suit arises upon a leаse to the defendants of certain premises in Cape May, N. J., for use as a post office for thе yearly rent of $1,120 and payable quarterly upon the first days of April, July, October, and January of each year. At
Shortly after the 1st day of January, 1913, when the rent for the last quarter for the year 1912 became due (said Bam-brick having in the meantime died), the defendants, over the protest of the plaintiff, apportioned the rent then duе between the estate of said Bambrick and the plaintiff by paying to said estate the rent for said prеmises from October 1 to November 23, and the balance due for said term to the plaintiff. This suit is now brought by the plaintiff to recover the sum so paid to the estate of said Bambrick.
The common law rule that in a case like the one under consideration apportionment of rent is not allowable is so well settled as to hardly need the citation of authority. This rule is stated in Tiffany on Landlord and Tenant as follows:
“ Bent is not, at common law, regarded as aсcruing from day to day, as interest does, but it is only upon the day fixed for payment that any part of it becоmes due. The result of this principle is that ordinarily the person who is on that day the owner of the reversiоn is entitled to the entire installment of rent due on that day, though he may have been the owner of the revеrsion or rent but a part of the time which has elapsed since the last rent day. Conversely, one who hаs been the owner of the reversion or rent during a part of that period can claim no portiоn of the installment unless he is such owner at the time at which the installment is payable by the terms of the lease. The general rule in this regard is ordinarily expressed by saying that rent can not be apportioned as to time.’’
It is also well settled that rent does not accrue from day to day during the term of the lease, but only аccrues at the
Bent not yet due is not a chose in action. It is a part of the realty and рasses as such with the estate. Van Wicklen v. Paulson,
The same rule prevails where the grantee of the reversion gets his title by sale under foreclosure proceedings of a mortgage existing at the time the lease was exеcuted. Duff v. Wilson, 69 Pa. St., 316. In the case cited the court said: “ The purchaser at the sheriff’s sale might have affirmed the lease and required the rent to be paid to him as assignee of the reversion.” Id., 318. When the plaintiff received the deed on the foreclosure sale the defendants were liable to be evicted аnd, by operation of law, there was a breach of the contract of lease on the pаrt of the lessor. If the defendants had been evicted they would have been liable to no one for thе rent to that date for the then pending quarter. They were not evicted, however, but were allowed by the plaintiff to continue in possession of the premises under the lease and chose to do so, thus creating the relation of landlord and tenant, with all of its incidents and obligations. Gartride v. Outley,
The defendants also make the point that the lease in this suit was not assignable under sеction 3737, Bevised Statutes.
It follows from the foregoing that the plaintiff should have judgment for the sum of $161.40, and it is so ordered.