drew up the opinion of the Court. The main question in the present case is, whether the defendant, as executor of Joseph Richardson, is liable, in an action of debt, for the rent due to the plaintiff. This question is placed beyond doubt by the provisions of the Revised Statutes ; and the Court are of opinion, that, in this respect, the Revised Stat utes made no new law, but declared the law as it stood before.
The land was demised for the life of the plaintiff, rendering an annual rent. The rent issued out of the land, and was payable by the occupier of the land, into whose hands soever it might come, and by whatever mode of conveyance. The St. 1825, c. 89, upon the same subject, declared this liability of the assignee to an action, “ whether the deed, lease or contract contain any clause of distress or re-entry for the non-payment of rent or not.” These words are omitted in the Revised Statutes, probably because they were superfluous, and the sense was the same without them. Revised Stat. c. 60, § 22, 23, 24.
And it seems to be equally well settled, that when the estate, out of which the rent issues, is assigned to two or more, the rent shall be apportioned to each part according to its annual value. Indeed this necessarily follows from the general provision, that the assignee shall be liable in debt for the rent; otherwise, and if the rent could not be apportioned, the right of the lessor to the rent could be defeated, by conveying the estate to two or more persons. Montague v. Gay, 17 Mass. R. 439.
The statute gives a remedy not only against the assignee himself, but against his executor or administrator.
Another question arising in the present case is, whether the present plaintiff can recover for that portion of the time which elapsed between the last payment of rent and the death of Daniels, her husband. The objection is, that the rents, as they accrued, were the absolute property of the husband, and that the sum due for arrearages did not survive to the wife. The Court are of opinion, that the rents did survive, and that the plaintiff is entitled to recover those arrearages. It appears by the facts in the present case, that the plaintiff, whilst sole, having a life estate only, demised that estate for the term ot *570her life, reserving an annual rent, without any clause of re* entl7- The husband, therefore, did not become seised of the jure uxoris, so as to make the rents and profits his own Nothing remained to the lessor, but the rent, which was a chose in action. This, therefore, is consistent with the cases of Clapp v. Stoughton, 10 Pick. 463, and Hayward v. Hayward, 20 Pick. 517, in which it is held, that the husband takes the rents and profits of the wife’s real estate, in his own right.
It was contended, in the present case, that the husband had reduced this chose in action to possession, by taking the lease into his own custody, and by taking measures to collect the rent. But we are of opinion, that neither of these circumstances has that effect. The custody of the lease, the mere security and evidence of the debt, is clearly no reduction to possession. His custody and possession of the instrument, was rightful and proper, and by force of it, he might have collected the rent, had he seen fit to do so. But his other proceeding was no more than taking some measures to bring an action in the joint names of himself and his wife, and that under a power from her, which intention he relinquished, on finding her unwilling to give him such an express authority. But whatever his intention might have been, he did not execute any such intention ; he did not release, assign, or collect these rents ; they remained, therefore, a chose in action, not reduced to possession, and therefore, under the authority of Hayward v. Hayward above cited, survived to the plaintiff.
It was objected, that this was a stale claim, the defendant’s testator having held the estate without claim for rent, about thirty years. It is undoubtedly a long time for such a claim to be suspended ; but the question under the circumstances is, whether laches can be imputed to the plaintiff. The defendant’s testator took the estate from Kelly, subject to the rent, and with notice of it. Kelly conveyed with warranty of the estate free of incumbrances, and for many years made that warranty good, by paying the annual rent himself. During all that time, the plaintiff had no occasion to call on Richardson, the owner of the land. Besides, she was under the disability of coverture, and had no claim to make in her own right, till *571the death of her husband, and within a year after that time, she made her claim. ^ ^
^ ^ We think the plaintiff is entitled to recover on apportionment of the reserved rent; and, unless the parties agree on the amount, an auditor will be appointed to settle the apportionment. under the direction of the Court.
Defendant defaulted.