Rose v. Bunn. inhabitant of Southampton, had a right to turn his sheep upon the premises, and that he was not a trespasser in so doing. But, consistently with this privilege, the Indians had a right to plow and plant the arable parts of the land, provided they threw down their inclosures in the autumn, and suffered them thus to remain until spring. The respective rights of the parties then were as follows: the plaintiff had the general right of pasturage upon the whole of the premises during the whole year, subject to the defendants' right to inclose and cultivate the arable portions during seven months. These arable parts were the hill sides, which seem to have been interspersed among the meadows, marshes and pasture lands. It was for the lessees to elect whether they would cultivate, and upon what portion they would thus exercise their rights. This relative situation of the parties, points out very plainly who were to be at the trouble and expense of securing the crop against the intrusions of the animals, whose owners had a general right to turn them upon the premises. The party whose right it was to select the parts he wanted cultivated, was the one whose duty it was to protect the portion so selected from the intrusion of the animals, who, until such selection, had a general right to be upon every portion of the premises. The case has no analogy to that of persons owning adjoining lands, where by the common law each proprietor was obliged to keep his domestic animals on his own land, and where, by the statute, the fences are to be divided. The provision by which the Indians were allowed to take fenc ing timber, and that by which they were forbidden to maintain inclosures during a part of the year, confirms the view I have taken of the case. I am satisfied that the Supreme Court was right in holding that it was for the lessees to secure the portions of land which they chose to cultivate, against the cattle of the lessors lawfully being upon the remainder of the premises, and that the taking of the plaintiff's sheep, as a distress, cannot be sustained. The judgment must be affirmed. All the judges concurring, Judgment affirmed. Marshall v. Moseley. MARSHALL et al. v. MOSELEY. As between tenant for life and remaindermen, rent accruing upon leases executed by the testator of the parties, and becoming due after the termination of the life estate, cannot be apportioned. It is immaterial that the tenancy for life is created by the testator as a provision for his widow. The devisees in remainder of the premises out of which the rent issued, may maintain a joint action against the executor of the life tenant for rent collected by him, which became due after the termination of the life estate. APPEAL from the Superior Court of the city of Buffalo. Action for money had and received to the use of the plaintiffs, devisees in remainder of real estate in Buffalo under the will of Bela D. Coe deceased. Mr. Coe died seised of the Mansion House, occupied as a hotel with stores in the basement, in the city of Buffalo and other premises, having in his lifetime executed leases of the hotel and stores to various persons, which by their terms were to expire May 1, 1855; the rents upon such leases being payable quarterly. He died in November, 1852. By his will, dated March 13, 1852, he devised to his wife Elizabeth in fee, his dwelling-house and appurtenances, and bequeathed to her all his furniture and household goods, books and pictures, carriages, horses, barn and garden utensils, and family pew. He also devised and bequeathed to his wife during the term of her natural life "the Mansion House in the city of Buffalo, as owned by me, and all and several the rents, issues and profits thereof." He devised his real estate at Black Rock, and two lots of land in Michigan, to a cousin, and another party not a relative: directed the rest of his personal estate to be applied to the payment of his debts, (except a mortgage on his dwelling-house, which was to remain a charge thereon); the remainder of his debts, over and above what could be paid by his personal estate, to be a charge upon the Mansion House property, to be paid therefrom after the Marshall v. Moseley. life estate of his wife. All the residue, remainder and reversion of his estate, real and personal, was devised, one-third part to each of the plaintiffs in fee; two of them being married women, a niece of the testator and the sister of his wife, and the third a nephew. He appointed the defendant Moseley as one of his executors. His widow intermarried with the defendant Moseley, and died April 5, 1855, having by her will made the defendant her executor and residuary legatee. On the 1st of May, 1855, the defendant collected the rents of the Mansion House property due for the quarter then expired. He apportioned the amount thus collected according to the periods between the commencement of the quarter and April 5, and between that date and May 1; paying to the plaintiffs $538, and retaining as executor of his deceased wife, $1,232. The plaintiffs having demanded this sum, claimed to recover it with interest from the time of demand. These facts having been proved the defendant moved for a nonsuit on the grounds that he was entitled to apportion the rent; that the plaintiffs could not maintain a joint action, but each should have sued for his separate share, and that the husbands of the married plaintiffs should have joined in the action. It was refused, and the plaintiffs had a verdict and judgment. After an affirmance of the judgment at general term, the defendant appealed to this court. E. C. Sprague, for the appellant. John Ganson, for the respondents. COMSTOCK, Ch. J. Mrs. Coe, by virtue of her husband's will, had a life estate in the premises, out of which the rents in question accrued, and the plaintiffs owned the remainder in fee. She died April 5, 1855, the leases being then unexpired. On the 1st of May following, the rents became due for the preceding quarter of a year. The defendant is the executor and residuary legatee of Mrs. Coe, and having collected the rents for the whole quarter, the principal question in the case is, whether he is entitled to apportion them by dividing the quar SMITH-VOL. VII. 36 Marshall v. Moseley. ter into two periods of time, one before and the other after her death, and by retaining in his own hands the portion which accrued before that event. As rent follows the reversionary estate, the law allows it to be apportioned where that estate becomes divided amongst different owners. This is according to the maxim, "accessorium sequitur naturam sui principalis." Thus if a reversion descend on the death of the ancestor who gave the lease, and the coparceners or heirs make a partition, the rent will be apportioned in favor of each of them. So if the reversion be severed by will or even by conveyance of the owner, the same result will take place. (2 Platt on Leases, 131, 132, and cases cited.) But the same reasons never existed for apportioning rent on the principle of time where the tenant was bound to pay it at stated periods. The sum accruing between each of the times of payment was a single entire debt, and was due only on the condition precedent of the tenant being entitled to enjoy the premises for the time in respect to which it was payable. If, therefore, a person having a life estate, with no power to make a lease to continue longer than during his life, should make a lease for years reserving rent half yearly, and should die in the middle of a half year, the rent, according to the principles of the common law, would be lost for the half of a year. The executor or representative of the lessor could not recover it because by the nature of the contract the lessor was not entitled to it except in the sums and at the times specified in the lease. His successor in the reversionary estate could not claim it for the additional reason that the reversion was not his until the lease itself was terminated by the death of the life tenant who gave it. If the lessee continues to hold afterwards, such holding is necessarily under some new contract with the party on whom the estate has devolved. (Woodfall's Land. and Ten., 248; 1 Salk., 65; 1 P. Wm., 392; 2 Id., 501, 502; 1 Man. & Gr., 589, 13 N. H., 343; 11 Mass., 493.) If, however, the lease continues, although intermediate the days of payment the reversion passes wholly into new hands, the obligation of the lessee to pay rent continues also. Thus Marshall v. Moseley. in the middle of a quarter the lessor may convey the whole estate which is under the lease, or it may be sold under execution or mortgage, or he may die leaving it to descend to his heirs, or he may dispose of it by will. The lease itself is unaf fected by these events, and the rent is therefore payable as though they did not occur; but it is payable only in the sums and at times specified in the demise. The reversion may be transmitted to a new owner during a period between the days of payment, but such an event does not divide the obligation of the tenant. The accruing rent follows the reversion wheresoever that goes, and neither the former owner nor his representative can recover any portion of it. Being recoverable only in a single sum and not until the prescribed day of payment, the common law gives it to him who is the reversioner at that time, and no case can be found where a court of equity has adopted a different rule. Says Mr. Woodfall (Law of Landlord and Tenant, 248), "at common law rent cannot be apportioned, but the reversioner becomes entitled to the accruing rent from the rent day antecedent to the decease of the tenant for life, whose representative was entitled to the arrearages due at some rent day before the death of the testator, or the intestate; for the law does not apportion rent in point of time nor does equity." (See also 2 Greenleaf's Cruise, p. 116, §§ 44, 45, 46, Ex parte Smyth, 1 Swanst., 337, and note, and other cases cited, supra.) It is true there are in the English books some cases of a peculiar kind, where on the death of a tenant for life before the day of paying rent for the current quarter or other period, the rent has been divided between his representative and the remainderman; but these are all cases in which the lease terminated on the decease of the life tenant; either because he had no power to lease so as to affect the remainderman, or because if such a power was given to him it had been defectively executed, and the lessee, holding the premises until the rent day, voluntarily paid the whole to the person who succeeded to the estate. In all the cases of this kind the lessee was not at common law bound to pay at all for so much of the time since the last rent day, as had elapsed |