182 P. 143 | Or. | 1919
It is submitted on behalf of plaintiff that where a tenant for life leases the real property to a subtenant and such tenant plants an annual crop and his estate terminates by the death of the life tenant after the planting of crops of annual growth and before the day for payment of rent, the under-tenant is entitled to such annual crops growing at the time of the death of his lessor as emblements and is entitled to ingress and egress to and from the land for the purpose of removing the same. Therefore as the defendant had the full benefit of the issues and profits of the land for the full year, he should pay the rents to the representative of the life tenant: Citing 2 Blackstone’s Comm. (Lewis’ ed.), 120-123; 4 Kent’s Comm. (14 ed.), p. *73; Washburn on Real Property (6 ed.), 120 et seq.; Noble v. Tyler, 61 Ohio St. 432 (56 N. E. 191, 48 L. R. A. 735, 736); 16 Cyc. 620, subd. 4; Carman v. Mosier, 105 Iowa, 367 (75 N. W. 323, 324).
It is the position of counsel for defendant that the rule in regard to emblements does not apply if the owner of life estate leases the land to a tenant and the tenant covenants to pay him a money rent, and the lessor dies before the rent falls due, his representative cannot collect the rent because the life tenant’s estate in the land terminated before the rent accrued, and the rent cannot be apportioned as to time, and money cannot be considered emblements.
The doctrine of emblements is not decisive of this case. The particular question is in regard to the rent upon which the rule in respect to emblements often has a bearing.
The Statute of 11 Geo. II, Chapter 19, Section 15, gave the executor or administrator of a life tenant, on whose death a lease granted by him had determined, the right to recover of the tenant a ratable proportion of the rent from the last day of payment to the death of the lessor. The date of the Statute of 11 Geo. II is given as 1738. In some jurisdictions in this country statutes of similar import have been enacted or such statutes have been adopted by the courts as a part of the common law: Perry v. Aldrich, 13 N. H. 343 (38 Am. Dec. 493); note L. R. A. 1915C, p. 208. The English statute in terms applied only to leases granted by a life tenant where the life tenant died, and it has been held in this country in a case where the statute was assumed to be in force that the statute did not apply to a lease by one holding a life estate pur autre vie: Perry v. Aldrich, 13 N. H. 343 (38 Am. Dec. 493). In some jurisdictions in this country, it has been held
In 3 Kent’s Comm. (12 ed.), *470, we read thus:
“The objection to the doctrine of the apportionment of rent was, that it exposed the tenant to several suits or processes of distress, for a thing which was originally entire, and he ought not to be obliged to pay his rent in different parcels, and to several landlords, when he contracted to pay, in one entire sum, to one person. But the convenience of mankind dictated the necessity of an apportionment of rent in a variety of cases. Though it was a principle of the common law that an entire contract could not be apportioned, yet the apportionment of rent was, under certain circumstances, allowed by the common law, either on severance of the land from which it issued, or of the reversion to which it was incident. A person has a right to sell the whole or any part of his reversionary interest*51 in land. It may be necessary to divide Ms estate out on rent’among Ms children, or to sell part to answer the exigencies of the family; and it would be intolerable if such a necessary sale worked an extinguishment of the whole rent. The rent passes as an incident to the purchaser of the reversion, and the tenant may always avoid several suits and distresses by a punctual payment of his rent.”
In Tiedeman on Eeal Property, Section 67, after stating the common-law rule, the author states:
“But this injustice of the common law has now been remedied by statutory changes, so that now generally, the rent is apportioned between the life tenant and reversioner, giving each his pro rata share according to the time of enjoyment of the lease before, and after, the tenant’s death. And the personal representatives of the life tenant may sue the tenant for years for the rent which may be apportioned to him.”
See 1 Washburn on Real Property (6 ed.), Sections 245, 246.
It is the position of counsel for plaintiff that the English statutes adopted prior to the settlement of the colonies became part of the common law of the colonies. Citing among other authorities, Evans v. Cook, 11 Nev. 69; Ex parte Blanchard, 9 Nev. 101; Commonwealth v. Knowlton, 2 Mass. 529, 530. In the latter case the court at page 534 of 2 Mass., uses the following language:
“Our ancestors, when they came into this new world, claimed the common law as their birthright, and brought it with them, except such parts as were judged inapplicable to their new state and condition. The common law, thus claimed, was the common law of their native country, as it was amended or altered by English statutes in force at the time of their emigration. Those statutes were never re-enacted in this country, but were considered as incorporated into the*52 common law. Some few other English statutes, passed since the emigration, were adopted by our courts, and now have the authority of law derived from long practice.”
The Constitution of the State of Oregon became operative April 14, 1859. By Article XVIII, Section 7 of that organic law, it is provided that:
“All laws in force in the territory of Oregon when this Constitution takes effect, and consistent therewith, shall continue in force until altered or repealed.”
See Runyan v. Winstock, 55 Or. 202 (104 Pac. 417, 105 Pac. 895).
As we view it the question in this case as between the administrator of Catherine E. Martin the life tenant, now deceased, and the lessee should be considered in the same manner as though the lessee of the life tenant was not the reversioner of any part of the estate. Section 7169, L. O. L., which has seldom, if ever, been applied, provides as follows:
“Every person in possession of land out of which any rent is due, whether it was originally demised in fee, or for any other estate of freehold, or for any term of years, shall be liable for the amount or proportion of rent due from the land in his possession, although it be only a part of what was originally demised.”
Section 7170 reads:
“Such rent may be recovered in an action at law, and the deed of demise, or other instrument in writing, if there be any, showing the provisions of the lease, may be used in evidence by either party, to prove the amount due from the defendant.”
Upon the first reading of our statute, while it is couched in different language from the statute of 11 Geo. II, Chapter 19, Section 15, seems to be in broad terms and evidently adopts the principle of the English statute, and there is much reason to believe that it was aimed to cure the mischief of the old common-law rule prohibiting the apportionment of rent pro rata as
In note to Ex parte Smyth, 1 Swanston’s Rep. 337-340, we find that:
“In Wykham v. Wykham, Sir James Mansfield inquired whether ‘It had ever been determined that the executor of a tenant pur autre vie is entitled to recover a portion of the rent from the last quarter-day under the statute?’ observing, that ‘he is certainly within the mischief; for otherwise, the tenant of the land may keep the rent for his own benefit’: 3 Taunt. 331.”
The provisions of these sections of our Code were referred to in the following cases: Stewart v. Perkins, 3 Or. 508; Holman v. De Lin River Finley Co., 30 Or. 428 (47 Pac. 708); Campbell v. Stetson, 2 Met. (Mass.) 504. In Stewart v. Perkins, 3 Or. 508, this court said:
“The old common-law doctrine was that a rent charge could not be apportioned by the act of the landlord, on the principle that the contract was an entirety, and could not be apportioned. The objéction was ‘that it exposed the tenant to several processes of distress for a thing which was originally entire, and he ought not to be obliged to pay his rent in different parcels, and to several landlords, when he contracted to pay one entire sum to one person.’
“Sections 31 and 32 of the statute heretofore referred to (now Sections 7169 and 7170, L. O. L.) were copied from Sections 22 and 23 of Chapter 60, of the Revised Statutes of Massachusetts. They were adopted there, to remedy a supposed defect in the old law, and to authorize an apportionment of rent in certain cases where a reversioner wishes to sell his estate in different parts, to different persons, or to make provision for his children. The Supreme Court, the highest judicial tribunal of that state, has given a judicial construction to the two sections contained in their statute. In Campbell v. Stetson, reported in 2*56 Met. (Mass.) 504, Shaw, C. J., in delivering the opinion of the court, ^ays:
“ ‘These are part of a series of provisions respecting long terms, where a rent is reserved, and where the lands out of which such rents are to issue, are to be treated as real estate, and as such may be divided and subdivided by descent, partition, levy of execution and otherwise, with various detailed provisions in regard to terms, and the apportionment and recovery of rents. But these statutes do not declare when, and by what acts, a right to rent shall be created, vested, and transferred, but only declare how it may be recovered when it is due; that is, apportioned and recovered in an action of debt. They are intended to prescribe remedies — not to establish rights.’ ”
Massachusetts has a statute Section 4 of Chapter 121, Public Statutes of Mass. 1882, which reads:
“Every person in possession of land out of which rent is due shall be liable for the amount or proportion of rent due from the land in his possession, alth ough it is only a part of what was originally demised.”
Section 5 of that chapter being identical with Section 7170, L. O. L. If the construction contended for by defendant is the interpretation of this statute which our lawmakers intended to serve the people of this state since 1854, it is difficult to conceive the purport of the addition in one of the sections of the Massachusetts statutes and also in our Section 7169, which addition is in the following words:
“"Whether it was originally demised in fee, or for any other estate of freehold, or for any term of years.”
It is submitted by the learned counsel for the defendant, that the Massachusetts statute from which oilrs was taken intended to make provision for the apportionment and collection of rents only where the
In 16 R. C. L., Section 445, page 938, it is stated in regard to the apportionment of rent with respect to time after announcing the common-law rule as follows:
“The hardship in the case of the death of a lessor holding for his own life was remedied by the Act of 11 Geo. II, c. 19, which authorized a recovery by his personal representatives of a proportionate part of the rent, where such a tenant died before or on that day on which the rent became due, and similar statutes have been enacted in some jurisdictions in this country. This provision, however, has been held riot to apply in case of a lease by a tenant pur autre vie terminated by the death of the cestui que vie. In case of a total eviction of the tenant by the wrongful act of the landlord or even by a title paramount, there is no •apportionment of the rent with respect to time, and therefore the tenant is not liable for any portion of the unaccrued rent, though he enjoyed the use of the premises for a time after the last rent day.”
In Endlich on Interpretation of Statutes, section 371, the author states:
“But, as applied to transcribed statutes, this rule is undoubtedly subject to important qualifications. Whilst admitting that the construction put upon such statutes by the courts of the state from which they are borrowed is entitled to respectful consideration, and that only strong reasons will warrant a departure from it, its binding force has been wholly denied, and it has been asserted that a statute of the kind in question stands upon the same footing, and is subject to the same rules of interpretation as any other legislative enactment. And it is manifest that the imported construction should prevail only in so far as it is in harmony with the spirit and policy of the general legislation of the home state. * * ”
Referring to Section 7169, L. O. L., “Every person in possession of land,” the defendant Fletcher was in possession of the land in question. “Out of which any rent is due,” rent is due out of the land leased by Mrs. Martin. “Whether it was originally demised in fee, or for any other estate of freehold.” Mrs- Martin, the lessor, held a life estate, or an estate of freehold in the land, “Shall be liable for the amount or proportion of rent due from the land in his possession.” Is the defendant liable for the proportion of the rent due from the land of which he held possessipn according to the terms of his agreement? Section 7170, L. O. L., provides that the rent may be recovered in an action at law. ' i
The familiarity with the common law and English statutes, of some of the earlier lawmakers who drafted Sections 31 and 32 of the Statutes of Oregon of 1855,
This cohclusion requires the reversal of the judgment of the lower court and a direction of a judgment in favor of plaintiff for thp rent of the demised premises for nine and one-third months, or $174.20.
Reversed With Directions.