Opinion
June Term, 1842.
Where a guardian rented land and took no bond or other security to himself for the rent, and before the rent became due the ward came of age and conveyed the land in fee to the lessee: Held, that the rent, being incidental to the reversion, was extinguished by this conveyance of the reversion to the lessee.
APPEAL from Manly, J., at Spring Term, 1842, of CHOWAN.
A. Moore and Iredell for plaintiff. (302)
No counsel for defendant.
This was an action of debt, originally commenced before a magistrate, brought to recover the rent of a tract of land. The plaintiff proved that on 1 January, 1841, he, as the guardian of Edward and Margaret Jones, rented by parol to the defendant a tract of land for that year for the sum of $60, taking no note, bond, or covenant for the payment thereof; and that the defendant entered and took possession thereof, and occupied the premises for that year. The defendant then proved that on 19 July, 1841, and before the rent or any part thereof fell due, the said Edward and Margaret Jones, having arrived at the age of 21 years, by deed conveyed the land, so rented, to the defendant in fee simple. The plaintiff then offered to show that he had accounted with and paid to the said Edward and Margaret Jones the rent of the said land for 1841, before the commencement of this suit. His Honor refused to receive the testimony as to the accounting for and paying the rent aforesaid to the said Edward and Margaret Jones, but held, and so charged the jury, that the facts proved by the defendant constituted no defense to the action for rent. A verdict was returned for the plaintiff for $60, the entire rent for 1841. A new trial having been moved for and refused, and judgment rendered pursuant to the verdict, the defendant appealed to the Supreme Court.
The judge was of opinion that the facts shown by the defendant constituted no defense to this action. We are of a different opinion. There is no convenant under seal that the defendant will pay the rent to the plaintiff, so as to make the contract entirely personal. The guardian has power to rent the land of his wards, provided always that he shall not let out any such lands of his wards for a longer term than until the orphans be of age, or in any other manner than by lease in writing, with proper covenants. Rev. Stat., ch., 54, sec. 15. Without stopping to inquire whether the act is only directory to the guardian, we are of opinion that if in this case the parol lease was good, the reversion in the land was in the wards, and the accruing rent was incidental to the reversion. Co. Lit., 143b. When, therefore, the wards came of age, and conveyed the land to the lessee, this conveyance united, in the same person and in the same right, the greater with the less estate, when the estate for years was drowned in the inheritance and thereby perpetually extinguished. The action of debt for rent is founded on privity of contract, which is said to be annexed to the person in respect of the estate, and so follows the estate. As soon, therefore, as the privity of estate is transferred, the remedy by debt is transferred also, and passes to the grantee of the reversion. Comyn on L. and T., 422, and the authorities there cited. The reversion, the rent, and the remedy for the rent were, by the said conveyance, all transferred to the defendant; and, therefore, necessarily the rent was extinguished. There must be a
PER CURIAM. New trial.
Cited: Wilcoxon v. Donelly, 90 N.C. 247; Holly v. Holly, 94 N.C. 674.
(303)