In England, it would seem, in view of the expressions adverse to the running of the burden of covenants on conveyances in fee,58 that the grantee of the land would not be liable on the covenant.59

361. Apportionment as to time.

60

At common law, rent is not regarded as accruing from day to day, like interest, but it becomes due only upon the day named for payment, and consequently, if a tenant in fee, or a tenant for life with a power of leasing, after making a lease for years, die between two rent days, his executors are entitled to no part of the rent as against his heir or devisee, or as against the remainderman, and, on a sale of land, the vendor has, in the absence of a special stipulation, no right to any part of the rent subsequently payable. So in case a tenant is evicted by title paramount between rent days, the landlord cannot claim a portion of the rent as having accrued before the eviction, nor can he do so when he himself ter

8 See ante, § 60.

61

So Holt, C. J., in Brewster v. Kidgill, 12 Mod. 166, 2 Gray's Cas. 674; Copinger & Munro's Law of Rents, 473-476. But that the burden does run, see Sugden, Vendor & Purchaser (13th Ed.) 483; Harrison, Chief Rents, 102.

0 Clun's Case, 10 Coke, 127a; Anderson v. Robbins, 82 Me. 422; Marshall v. Moseley, 21 N. Y. 280; Sohier v. Eldredge, 103 Mass. 345, 351.

61 Bloodworth v. Stevens, 51 Miss. 475. See cases cited ante, note 60.

So, when a life tenant with power to make leases, having made a lease, died on the day named for payment of the rent, since the rent was not legally due till the end of the day, the remainderman was entitled to the whole rent. Rockingham v. Penrice, 1 P. Wms. 177, 2 Gray's Cas. 716.

62 Hearne v. Lewis, 78 Tex. 276; Martin v. Martin, 7 Md. 368, 61 Am. Dec. 364; Bank of Pennsylvania v. Wise, 3 Watts (Pa.) 394. 68 Clun's Case, 10 Coke, 127a; Fitchburg Cotton Manufactory Corp. v. Melven, 15 Mass. 270.

.

minates the lease before the rent is due.64 On the same principle, at common law, if a tenant for life die after making a lease for years, his executor cannot recover the rent up to his death, nor can the reversioner or remainderman recover it, since he is entitled only to what becomes due during his time, and so the lessee escapes liability for rent from the last rent day.65

The rule forbidding apportionment of rent, so far as concerned a rent reserved on a lease by a tenant for life, terminating by his death, was changed by St. 11 Geo. II. c. 19, § 15, and a similar statute has been enacted in many of the states.86 By a later English statute,67 rents are to be considered as accruing from day to day, and as apportionable accordingly, and in some states there are general provisions of approximately similar effect, giving one entitled to a rent, or his personal representative, a proportional part thereof, calculated up to the day of his death or other termination of his interest.68

362. Apportionment as to amount.

The owner of a rent, or of a reversion to which a rent is incident, may partition the rent by granting parts thereof, measured by amount, to different persons, as when one who has demised land for years, reserving a rent of a certain sum

64 Zule v. Zule, 24 Wend. (N. Y.) 76, 35 Am. Dec. 600; Nicholson v. Munigle, 6 Allen (Mass.) 215, 219; Robinson v. Deering, 56 Me. 357. So it is held in Massachusetts that, in case of the termination by the landlord's act of a tenancy at will before the day for payment of the rent, no rent can be recovered. Hammond v. Thompson, 168 Mass. 531.

65 Jenner v. Morgan, 1 P. Wms. 391, 2 Gray's Cas. 718; Ex parte Smyth, 1 Swanst. 337, notes; Perry v. Aldrich, 13 N. H. 343, 38 Am. Dec. 493; Hoagland v. Crum, 113 Ill. 365, 55 Am. Rep. 424.

66 1 Stimson's Am. St. Law, § 2027 (B).

67 "The Apportionment Act," 33 & 34 Vict. c. 35 (A. D. 1870). 68 1 Stimson's Am. St. Law, § 2027 (A).

yearly, grants to each of three persons the right to one-third of such yearly sum.69 And so if the reversion to which a rent is incident is conveyed to or otherwise acquired by two or more persons, as when the owner of the reversion grants to each of them the reversion in a distinct part of the land, each is, in the absence of a stipulation to the contrary, entitled to so much of the rent as is proportioned to his share of the land.70 And if the lessor grant the reversion of a part of the land, retaining the balance, he and his grantee are entitled to proportional shares of the rent." In case of the conveyance of a part or of separate parts of the reversion, the tenant, unless he consents to the apportionment made by the parties to the conveyance, is entitled to have an apportionment, based upon the respective values of the different parts of the land, made by a jury, in order to determine his respective obligations to the owners of the reversion.72

The right to rent reserved on a lease for years is terminated by the union of the leasehold and the reversion in one person,73 and, in case a union of title occurs as to a part only of the land, the rent is apportioned, and it is extinguished in an amount proportioned to the value of the land in which there is such unity of title, while still existent as regards the balance.74

"Ards v. Watkin, Cro. Eliz. 637, 651, 2 Gray's Cas. 667; Rivis v. Watson, 5 Mees. & W. 255; Ryerson v. Quackenbush, 26 N. J. Law, 236; Farley v. Craig, 11 N. J. Law, 262.

70 Moodie v. Garnance, 3 Bulst. 153; Ehrman v. Mayer, 57 Md. 612; Crosby v. Loop, 13 Ill. 625.

71 Co. Litt. 148a; West v. Lassels, Cro. Eliz. 851; Linton v. Hart, 25 Pa. St. 193, 64 Am. Dec. 691; Worthington v. Cooke, 56 Md. 51. See ante, § 360.

72 Biiss v. Collins, 5 Barn. & Ald. 876. And see Cuthbert v. Kuhn, 8 Whart. (Pa.) 357, 31 Am. Dec. 513.

78 See post, § 363.

74 Litt, § 222; Co. Litt. 148a; Walker's Case, 3 Coke, 22b, 2 Gray's Cas. 661; Ehrman v. Mayer, 57 Md. 612; Peters v. Newkirk, 6 Cow.

(785)

The right to and liability for rent are also partially extinguished if the tenant ceases to have possession of part of the premises owing to a re-entry by the landlord, under the terms of the lease, into a part of the land;75 or in case the tenant is evicted from part of the land by title paramount, the landlord being entitled to so much of the rent as is proportioned to the part of which the tenant retains possession.76

A tenant cannot, without the consent of the owner of the rent, by any disposition of the land, or of a part thereof, apportion the rent so as to affect the right of such owner to collect the whole rent from any and every portion of the land, and, accordingly, an assignment by the lessee of the leasehold interest in a part of the premises does not affect the right to distrain on chattels on any part thereof, or to bring debt for the whole rent against the lessee, and, as before stated, it does not affect his liability on his covenant to pay rent. 78

A rent charge cannot, at common law, be apportioned, so as to exonerate part of the land, by act of a party, as distinct from act of the law; and consequently, if the ownership of the rent and of a portion of the land becomes vested in one

(N. Y.) 103; Nellis v. Lathrop, 22 Wend. (N. Y.) 121, 34 Am. Dec. 285; Leitch v. Boyington, 84 Ill. 179; Higgins v. California Petroleum & Asphalt Co., 109 Cal. 304. If, however, the rent consists of the delivery of an indivisible chattel, since it cannot be apportioned, it is extinguished. Litt. § 222; Bruerton's Case, 6 Coke, 1. 75 Walker's Case, 3 Coke, 22b, 2 Gray's Cas. 661; Collins v. Harding, 13 Coke, 58.

76 Co. Litt. 148b; Gilbert, Rents, 173; Lawrence v. French, 25 Wend. (N. Y.) 443, 2 Gray's Cas. 755; Christopher v. Austin, 11 N. Y. 216, 2 Gray's Cas. 762; Fillebrown v. Hoar, 124 Mass. 580; Halligan v. Wade, 21 Ill. 470, 74 Am. Dec. 108; Seabrook v. Moyer, 88 Pa. St. 417.

7 Walker's Case, 3 Coke, 24a, 2 Gray's Cas. 661; Broom v. Hore, Cro. Eliz. 633; Curtis v. Spitty, 1 Bing. N. C. 760; 2 Platt, Leases, 135.

78 Ante, § 360.

person," or if the owner of the rent releases a part of the land therefrom,80 the whole rent is extinguished. A rent charge may, however, be apportioned by agreement between the owners of the land and of the rent; this, in effect, constituting a new rent charge.81

On the theory that a contractual liability is not apportionable, the original lessee has been regarded as liable, on his covenant to pay rent, for the whole amount thereof, even, it seems, after his eviction from part of the premises by title paramount,82 and even though his assignee has surrendered part of the premises to the landlord.88 It does not seem that such a rule would usually be adopted in this country, in view of the wide extension of the principle of partial failure of consideration, and also of the freedom with which covenants are apportioned as regards the right of recovery thereon. Moreover, it would seem that the covenant might frequently be construed as one to pay the rent that may be due, rather than to pay the amount reserved, so as to make available, in an action on the covenant, all defenses which might be asserted in an action of debt.84

To Litt. § 222; Co. Litt. 147b, 148a; Gilbert, Rents, 154; Van Rensselaer v. Chadwick, 22 N. Y. 32; Ehrman v. Mayer, 57 Md. 612; Horner v. Dellinger (C. C.) 18 Fed. 495; Van Rensselaer v. Bradley, 3 Denio (N. Y.) 135, 45 Am. Dec. 451. The whole rent is not, however, extinguished, if the owner of the rent acquires a part of the land by descent. Litt. § 224; Co. Litt. 194b.

80 Co. Litt. 147b; Harrison, Chief Rents, 127; 18 Vin. Abr. 504. This is changed in England by 22 & 23 Vict. c. 35, § 10.

81 Co. Litt. 147b; Van Rensselaer v. Chadwick, 22 N. Y. 32; Church v. Seeley, 110 N. Y. 457.

82 Stevenson v. Lambard, 2 East, 575, 2 Gray's Cas. 679. Compare, Mayor of Swansea v. Thomas, 10 Q. B. Div. 48.

83 See Baynton v. Morgan, 22 Q. B. Div. 74, and comments in Woodfall, Landl. & Ten. (16th Ed.) 324.

84 In Poston v. Jones, 2 Ired. Eq. (N. C.) 350, 38 Am. Dec. 683, it was held that equity would relieve in such case against an enforcement of the covenant for the full amount.