22 Pa. 144 | Pa. | 1853
The opinion of the Court was delivered by
It was, at one time, supposed by some that a rent-service incident to a reversion was lost by a grant of part of the reversion, and could not be apportioned. But this is not the law. A reversion is a thing in its nature severable, and the owner has an undoubted right to dispose of the whole, or any part of it, according to his necessities or convenience; and the rent, as incident to it, being a retribution for the land, may be divided and ought to be paid to those who are to have the land upon the expiration of the lease. The accommodation of mankind requires that the 'rent shall be apportioned wherever there has been, either by act of the law, or by act of the party, a division made of the land out of which it issues ; because, without this privilege, a man who can only dispose of his real estate to advantage by' dividing it, might be forced to sacrifice it; and the heirs of a decedent might be seriously injured if they could not divide the inheritance without losing their remedies for the rents. “ Hence,” says Mr. Justice Kennedy in Bank of Pennsylvania v. Wise, 3 Watts 404, “ a reversioner may sell his estate in different parts, to as many different persons, and the tenant will he bound to pay to each his due proportion of the rent. . Or if the lessor should die, and the estate descend to his heirs as tenants in common, the tenant will he hound to pay to each his proper proportion of the rent:" Cro. Eliz. 742; 1 Roll. Abr. tit. Apportionment D. pl. 3, 4, 5; 1 Thom. Coke 366 n. 13; Co. 57; Gilb. 172. “A proportionable part of the rent passes immediately with the reversion, and the tenant is not prejudiced by the remedies which follow the right, because it is in his power, and it is his duty, to prevent the several suits and distresses by a punctual payment:" 1 Thom. Coke 366 n. 369. The
Erom what has already been said, it is manifest that there was also error in affirming the plaintiff’s 5th point. As the lessor had a right to sell a part of the demised premises without the consent of his tenant, and such sale would not destroy his right to distrain for the rent due for the residue, it follows that such a sale, “ with the agreement and consent of the tenant,” would be entirely unobjectionable. It is also clear from these principles that it was error to assent to the defendant’s first point, and to instruct the jury in the general charge that “ the sale to the Girard Academy and to Jones in 1850, would defeat the right of the lessor to distrain for rent accruing after that time and for that current year.” As these sales were lawful and created several interests, the expulsion from the premises included in these conveyances respectively, can have no effect upon the reversion remaining in Haney Reed. After the severance her interests are as distinct as are those of any other
The lease commenced on the 1st February, 1843. Upon the death of the lessor it was renewed by his devisee, by endorsement on the original contracts. Numerous payments are endorsed on the same paper without appropriation to any particular years. Under such circumstances they ought to have been applied to the extinguishment of the rents which first accrued. The previous years’ rents should have been satisfied before any of the payments could be properly appropriated to the year ending 1st April, 1850. From some inadvertence there seems to have been a misdirection in this particular.
So far as the instructions of the Common Pleas were in conflict with the principles herein stated, they are, in our opinion, erroneous, and the judgment is for that cause to be reversed.
Judgment reversed and venire facias de novo awarded.