JAMES HARRIS Executor of BENTON HARRIS vs. NATHAN VICKERS

JAMES HARRIS Executor of BENTON HARRIS vs. NATHAN VICKERS. Indebitatus assumpsit will not lie by the administrator oF tenant for life for an apportionment of the rent, PIE. must declare specially. Capias case for use and occupation. Plea non assumpsit. Issue. Layton for plff. exhibited the letters testamentary and proved the leasing by testator to deft, at @100 per year, from January to January. B. Harris died in June 1830. He here rested, when Cullen for deft, moved a nonsuit. Rent follows the reversion. If lessee die before rent due, the rent goes to the heir with the inheritance. Toller Ex. 177. The proof shows that Benton Harris was the owner of this property; on his death it descended to the heir; the heir., therefore, and not the ex’r., is entitled to the rent. The action is assumpsit for use and occupation, to recover a reasonable sum for the occupation of the house of plff. But when the rent fell due, the house belonged to the heir of Benton Harris, and not to plff. his personal representative. Layton. Benton Harris was tenant for life, and the suit is to recover that portion of the rent which fell due in his life time. We go for an apportionment. [MAJORITY — Clayton, C. J.] Clayton, C. J. By the Court. —If Benton Harris were tenant for life, his ex’r. could not maintain a general, indebitatus assumpsit for an apportionment. He must count in a special action on the case under the act of assembly. It was so decided in the case of Joseph Parsons, adm’r. vs. Allee, in Kent, at the Nov. Term, 1831. . On the other point, we are of opinion that an ex’r. cannot recover accruing rents after the death of the testator; and, therefore, there must be a Judgment of nonsuit. “Joseph Parsons, being tenant for life, in his lifetime, let to Abraham Allee a tract of land by paroi, from year to year, rendering rent one-third of the corn, and two-fifths of Lite wheat. The leUing was from the 1st of March. Parsons died on the 20th of October. To recover under the Slat. 11 Geo. 3 Ch. 19., a proportion of the rent the adm’r. after the expiration of the year, brought Lis action, and filed his navr in general- indebitatus assumpsit a Hedging that Allee was indebted to Parsons in his lifetime for Ihe use and. occupation of the premises for a long time then elapsed, in consideration whereof, he promised to pay the said Parsons in his lifetime, &c. It was objected that general indebitatus assumpsit will not lie. Second, that it should have been alledged that deft, being liable to the ex’r., undertook and promised to pay him as ex’r. Accruing rent being- neither débilwn nor solvendum, a release of all actions does not release such rent. Lilt. Sect. 513; Co. Litl 293-6. There being no debt or duty at the death of Parsons, it would seem that in an action brought by Ms adm’r. after his death the declaration ought to have stated the tacts specially, to wit: the use and occupation by permission of Parsons in his life time; the death of Parsons; the legal liability of the tenant to pay to the adm’r., and his undertaking to pay. (See, form of declaration for ex’rs. Rent due from deft. 25th March, 1789, to 25th June, 1789. The testator died in the middle of the quarter. In a suit by ex’r. of a termor for rent which became due after the death of the testator, &c.” Impeys. Plead. 360; 1 Chitty Pl. 11, S8-9.)