
    
      John Moore, assignee, vs. Turpin & Powers.
    
    The tenant of a landlord whose interest has been sold by the sheriff, (or coroner,) is not bound to pay rent, accruing after the sale, to his lessor.
    
      Before Richardson, J., Greenville, Fall Term, 1842.
    This was an action of assumpsit, brought by John Moore, assignee of David Henning, to recover the sum of one huhdred and eighty-three dollars and thirty-four cents, the rent of a store-house and lot in the village of Greenville, under the following circumstances:
    Turpin & Powers had rented of David Henning his store-house and lot, at $200 per annum. The lease was a verbal one. They had occupied the house for three years, and one month of the fourth year, and had paid Henning the rent annually. The fourth year had commenced, and one month of the time expired, when the coroner of Greenville district made a levy on all of Henning’s property, by virtue of sundry fieri facias which had been placed in his hands for that purpose. The store-house and lot were levied on with the rest of Henning’s property, and sold. At the sale, Messrs. Turpin & Powers gave notice that they had leased the store-house for one year; that eleven months of the year had yet to run, and that they would not give possession till the expiration of their lease. They stated that they were paying $200 a year for the rent, and did not care to whom they paid it. Dr. Irvine became the purchaser of the store-house and lot. Two or three days after the sale by the coroner, the defendants, Messrs. Turpin & Powers, accounted to Henning for the rent then due, by crediting his store account with them for the same. Henning had already been arrested under a ca. sa., and was in jail at the sale of his property. Sometime afterwards, he applied for the benefit of the prison bounds Act, rendered in a schedule of his property, and assigned the same to the present plaintiff, John Moore. In his schedule, various choses in action were mentioned, and amongst them, the rent due and about to be due him from Turpin & Powers for the store-house and lot, which had been already sold by the coroner, subject to their lease.
    The defendants were notified by Henning, before his assignment, and after the sale of his property, that he should claim from them the rent due on their lease, at the expiration of the year. The plaintiff also gave the defendants notice, after the assignment of Henning, that he should hold them responsible to him for the rent, and that they must not pay it to any one else. Dr. Irvine, the purchaser, likewise gave the defendants notice, directly after his purchase, that he claimed the rent from the date of his purchase. Under these circumstances, the defendants refused to pay the rent to any one, and this action was brought to try the question to whom it belonged.
    Being entirely a question of law, the verdict was ordered for the defendants by the court, and the jury found accordingly. The presiding Judge was of opinion, from the foregoing statement of facts which were agreed on by the counsel, that the plaintiff could not recover, and that the rent of the store-house and lot belonged to Dr. Irvine from the date of his purchase.
    The plaintiff appealed, on the following grounds.
    1. Because his Honor the presiding Judge charged the jury that the rent due from the lessee could not be recovered by the lessor or his assignee, where the premises had been sold after the lease, although the lessee continued to occupy them, and that the rent belonged to the purchaser of the premises,
    2. Because the verdict was otherwise contrary to law.
    Perry, for plaintiff.
    The lease from Henning to Turpin & powers was good, although verbal. Parol leases are good for one year; see 6 Stat. at Large, 67. The lease was for four years. Three years had run out, and the fourth had commenced. This made it a tenancy from year to year, and not at will. The courts will lean against tenancies at will, and construe them for years, especially when an annual rent is paid. See 2 Black. Com. 47; 4 M’Cord, 59; 15 Johnson, 505. If the lease was a good one, the purchaser at the coroner’s sale had no right to the house and lot until the expiration of the lease. He could not have brought an action against the tenant for possession. He purchased nothing which he could use until the lease had terminated. Suppose the tenant had given his note to Henning for the rent, could the purchaser have claimed it 2 Would not Henning have had the right to transfer that note to whom he pleased 2 Whether or not a note was given for the rent, does not alter the case. The debt from the tenants to Henning existed on a legal contract. Having been taken with a ca. sa. he was bound to make the assignment, which he did. The assignment is good; see 2 Brevard’s Digest, 159. In this case, the purchaser had notice of the lease at the time of sale, and was told by the tenants that they were in possession, and would hold on till the expiration of the year. If it had been known that the purchaser would be entitled to the rent, the house and lot would have sold for $200 more than they did. It has been decided that where a purchaser receives express notice of a lease, such lease, though not recorded, will be valid against such purchaser. 1st Baily’s Reports, 315. To permit the purchaser to recover the rent under these circumstances, would be doing injustice to the creditors of Henning, and giving to him that which he never bought or paid for. A debt is not the subject of levy and sale. This was a debt due from Turpin & Powers to Henning, and nothing more than a debt, although due on account of rent. The only legal way to get hold of this debt, was that taken by the plaintiff.
    Choice, contra,
    cited 3 Kent’s Com. 460-3-9 : rent goes to the purchaser; 2 Blackstone’s Com. 179; 2 Stat. at Large, 576-7; 3 Kent’s Com. 471; 4 T. R. 632.
   Curia, per

Richardson, J.

The general question of the case is, what did the coroner transfer to Dr. Irvine in selling to him the land of Henning % The answer is, he transferred the land, with all the rights annexed to it, according to the title of Henning ; and to the same extent as if Henning had, himself, given a release and quit-claim of all his right and title to the purchaser and his heirs. Such a release would, of course, transfer the use of the land, personally, or by the means of tenants, according to the rules and meaning of estates in land. But it is supposed that, as Henning had, before the sale, leased the land to Turpin & Powers, the rent is still due to Henning for the term of the lease — that is, for the space of eleven months after the coroner’s release to Dr. Irvine. The right of Turpin & Powers to keep possession for the term of their lease, cannot be questioned. All property is sold, by the sheriff or coroner, subject to the rights of strangers. The defendant alone loses his dominion over it, because that is transferred to the purchaser, and, cumonere, assuredly. But the plaintiff’s case assuifies that Turpin Powers may not only keep possession, but must pay their rent to their former landlord, Henning; first, because they had rented the land of him; and secondly, because the rent had been growing-due to Henning for a month before the sale to Irvine, and therefore the court cannot apportion the rent of the subsequent eleven months to Irvine.

If the first reason were to prevail, and such a consequence were to follow, the purchaser of a landed estate with a numerous tenantry, might, with a little sagacity and much interestedness on the part of the former freeholder, be subject to the loss of both the'use of the lands and the rents, for an indefinite time. But in that case, what would be the meaning of the rights and title released to him by his purchase ? They would consist chiefly in the right to purchase of the tenants all their leases, or of the rents from the former freeholder. But the claim of the plaintiff, set up in the particular case, does not require the consideration of such extreme consequences. The proper question is, can the rent be apportioned between Irvine and Henning, bylaw? oris one of them entitled to the whole? The fact that Henning has received the month’s rent growing due at the time of the coroner’s sale, does not prove that he had a legal right to so much of the rent; and if Dr. Irvine had a right to the whole year’s rent, it does not follow that we apportion the rent, by awarding to him the eleven months rent to which he confines his demand, when he might have demanded twelve months rent. But as the Doctor confines his claim to eleven months only, this exposition of the ground taken in favor of Henning’s rights, is made, only to shew that the question of apportioning the rent arises from the assumption that Henning had a legal right to the rent, up to the sale; and that, if the Doctor had aright to that very rent, by virtue of his purchase, he cannot but have right to the subsequent rent of eleven months. For the argument, that if the Doctor had a right to the whole rent, he is, of course, entitled to the part he demands, is not lessened by the fact that he does" not require Turpin & Powers to pay him what they have already paid to Henning. It is easily conceived, then, that all the legal difficulty of dividing- an entire contract, or of apportioning the rent, may be as well directed against the assumption of Henning’s right to receive the first month’s rent, as against the Doctor’s right to receive that of the subsequent eleven months. Strictly speaking, the verdict does no more than settle the point that Henning, (or his assignee,) is entitled to no more rent. What Dr. Irvine is entitled to, may be yet an open question. But let it be granted, that Dr. Irvine has conceded the legal right of Henning to take the rent up to the sale — and this appears probable — still, may not the rent be apportioned between them'? The doctrine of rent is technical, but rational, and rent is often apportioned. It is reserved to him from whom the land proceeded, or his representatives, and is due for the use of the land, says Chancellor Kent, 3d vol. 463, quoting the established authorities. He says, “ If the landlord dies before the rent becomes due, it goes to the heir.” But if he dies after, it goes to the executor. This would indicate, by analogy, that in the instance before us, the whole year’s rent should pass to the freeholder, at the time the rent became due. Again he says, from Roll’s Abr. and 1 Saund. 205, “ If the tenant be evicted of a part of the land, the rent is apportionable,” 464. And here let me remark, that the difficulty of apportioning rent is on account of the tenant, not of the landlord. But in the case before us, the tenants are not only passive, between the claimants, but have taken a step towards the apportionment, by paying a part to Henning. Thus, then, the tenants have left the rent to be divided according to the rights of the successive freeholders, and present no objections of their own; while Henning has himself acceded to such partial payment of the rent, before it was due, under his lease to Turpin & Powers; or, at least, he has credit for so much, upon their account against him; and the plaintiff’s case assumes the fact.

But to return to the strict legal right to apportion rent among different freeholders. Chancellor Kent says, page 469, “ Though it was a principle of the common law, that an entire contract could not be apportioned, yet the apportionment was, under certain circumstances, allowed by the common law, either on severance of the land, (fee., or of the reversion.” “ A person has a right to sell the whole or a part of his reversionary interest,” (fee. “ It may be necessary to divide his estate out on rent among his children, or to sell a part,” (fee. “ The rent passes, as an incident, to the purchaser of the reversion.” See, also, Gilbert on Rents, 163, and Co. Litt. 148; “ The rent is to be apportioned among the several owners of the reversion, or of the rent, according to the value of the land.” “And whenever the question becomes a litigated one, it is the business of the jury to apportion the rent according to the value of the land.” And he finally adds, “ The rent is also liable to' apportionment, by act of law, as in cases of descent and judicial sales ; (see Co. Lit. 224 ; 1 Roll. Abr. apportionment, Cro. Eliz. 742.) And assuredly sales by the coroner or sheriff carry the same incidents as judicial sales ; they are acts of law, and must be placed either upon this footing, or that of sales by the freeholder himself. And we have seen that apportionment is incident to both species of sales. Finally, upon the technical rule, so well urged by the plaintiff’s counsel, were I to. speculate upon the strict application of the common law, that entire contracts cannot be apportioned, I should incline to the opinion, that no part of the rent being due at the time of the sale, the purchaser became entitled to the whole rent at its maturity, as incident to his freehold. (But see statute 11 Geo. II, ch. 19, in 2d vol. Stat. at Large, 576, which may have introduced a modification of this strict principle.) At all events, it is unnecessary to press this argument to that extent, as the verdict merely acquits the defendants of further rent as due to Henning, or his assignee. The motion is dismissed.

O’Neall, Evans, Earle, Butler and Wardlaw, JJ. concurred.  