
    
      F. G. Fraser vs. W. R. Davie.
    
    Tenant for life of land died in April, and his executor soon after rented the land from the remainderman for ten years: Held, that the executor was bound to pay the rent for the year-in which the tenant for life died, and that it was immaterial whether, by the Act, his estate was extended until the crop was made or not.
    Rent payable in cotton is the subject of distress.
    
      Before O’Neall, J. at Chester, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows.
    “ This was an action of replevin. The landlord, W. R. Davie, avowed under a distress warrant, for rent arrear.
    “ The facts necessary for a decision of the case, are as follows. The late F. W. Davie was tenant for life, of the land: the avowant was tenant in remainder. F. W. Davie died 9th of April, 1850. The plaintiff is his executor, and soon after rented the land from the avowant for a period of ten years, at an annual rent of fifty bales of cotton, or 20,000 lbs. to be paid on the 1st of January of each year.
    “ The rent for 1850 was not paid, and the landlord distrained, seizing fourteen bags of cotton, and eighteen hundred bushels of corn. It appeared that the plaintiff had applied to Chancellor Johnston for an injunction to restrain the distress, on the ground, inter alia, that the executor of the tenant for life had the right to the use of the land for the year in which the testator died, and that he, (the executor) in ignorance of his rights having made the contract of rent, ought to be relieved. The Chancellor refused the injunction, ruling that the tenant could not dispute his landlord’s right to possession and rent; more especially as this was a term of several years, and could not bé subdivided. The same question was raised before me. I concurred pretty much in the Chancellor’s view, but, independent of my own views, his decision, I thought, concluded me.
    “ The plaintiff next contended that the rent not being reserved in money, the distress was illegal. I thought otherwise.
    
      “ The jury, under my instructions, found for the avowant the value of the cotton stipulated to be paid for rent, $2400.”
    The plaintiff appealed, and now moved for a new trial, on the grounds:
    1. Because the plaintiff, as executor of F. W. Davie, was entitled to the possession of the land for the remainder of the year 1850; and his obligation to pay rent should be so construed.— If not, that it was given in mistake of his rights, and is without consideration and void for the year 1850.
    2. Because the rent reserved in the lease was not a sum certain in money, and, therefore, no distress warrant could rightfully issue for the recovery of the rent.
    
      W. F. DeSaussure, for the motion,
    cited 2 McC. Ch. 84; 1 Strob. Eq. 53; P. L. 494 ; 2 Rich. Eq. 321; 3 Strob. Eq. 44; 4 Rich. 590; Sp. Eq. 315 ; Bail. Eq. 436; Gilb. on Rents, 145 et seq; 2 Hill, 657; 4 T. R. 682; 6 Bin. 45; 14 Johns. R. 224 ; 1 Cowen, 117; Co. Lit. 47, b; 1 Salk. 262.
    
      Gregg & McAlilly, contra,
    Comyn on Land. & Ten. 95, 98; Co. Lit. 142; 2 Bl. Com. 41, 43; 7 Com. Dig. Tit. Rent, B. 4; Steph. Com. 562; Steph. N. P. 1317; Arch. Land. &. Ten. 105; 2 Tread. 638; 3 Brev. R. 489; 1 Sp. 288; 3 Strob. Eq. 171.
   Curia, per O’Neall, J.

In this case the Court is satisfied with the result of the case below. They do not, however, regard Chancellor Johnston’s decree as res adjudicata: it was merely authority, on the question tried, and was to have that weight which the Judge below thought its reasoning was entitled to.

We regard the contract for a lease of ten years as an entirety, and not as a lease from year to year to run for ten years. Regarded as we consider the case, it is wholly immaterial that the testator’s life estate did not terminate the instant he died, but was extended, by operation of law, till the crop was made and gathered. For, in stipulating for a lease of ten years, that fact might have induced a less demand of rent, or other more favorable terms.

There is no evidence, whatever, that the defendant entered into the contract by mistake, or even ignorance of the law. Until he proved these facts, the legal presumption is, he knew every thing necessary to make his contract valid.

That rent to be paid in any thing susceptible of valuation is the subject of distress cannot be denied.

This being so, there is no cause of complaint: for the distress replevied was equal to the rent arrear. This the jury have found.

The motion is dismissed.

Evans, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.  