Bevans v. Briscoe

Nicholson, J.

delivered the opinion of the court. The law is well settled, that where tenant for life makes a lease for years, and dies before the expiration of the term, the under-tenant, or tenant for years, if he has sown the lands, shall reap them; or in other words, that he is entitled to the emblements. Co. Litt. 50. 2 Blk. Con. 145,

Trior to the statute 11 Geo, II. ch. 19, if tenant for life, who made a lease for years, died before the day on which the rent was payable, his executors had no remedy for the recovery of the rent from the tenant for years, to whom in fact it became a donation. By that statute, however, (section 15,) a remedy is provided, and the executors of tenant for life may recover a proportion of the rent to be computed to the time of the death of tenant for life. Before and since the statute, the reversioner or remainderman, had the same right to enter upon the tenant for years, as he had to enter where tenant for life died in possession. If executors of tenant for life held over, the remainderman or reversioner had his action against them, and might recover a compensation for the wrong done to him in holding over, lie may, since the statute, recover in an action for use and occupation. He has the same remedy against tenant for years who holds over. The question then is, in what respect shall the tenant for years, or executors ef tenant fop life, be said to hold over, so as to be subject to the action ■of the reversioner or remainderman? It being settled, that tenant For life, and his under-tenant tor years, are entitled to the emblements, it is equally well settled that he has the'i light to ingress, egress and regress, to preserve the eropr to gather it, and to carry it off, ' it must necessarily follow that in doing this he is no trespasser upon, nor a tenant holding under the remainderman or reversioner. The fifteenth section of the statute provides a remedy for the executors of tenant for life, but gives no remedy to the re-mainderman or reversioner, nor does it place him in a better situation than he was before. The fourteenth section embraces him, as well as all other persons, in the general provision which gives the action for use and occupation. His rights are precisely what they were before the statute, although the nature of his remedy maybe somewhat changed. Where tenant for life dies in possession, the rever-sioner or remainderman is not entitled to the occupation of the lands on which a crop is growing, until that crop is taken off, or a reasonable timéis given for taking it off; and the law must be the same where the lands are leased for years to an under-tenant, who has all the rights which the executors of tenant for life would have had if he had died in possession.

If tenant for yeavs occupied the premises after the em-blements were taken off, the remainderman was entitled to recover for the use and occupation; and so the court instructed the jury, as stated in the second bill of exceptions.

Some further provisions may be necessary on this subject, but these are for the legislature to make.

The court agree with the court below in the opinions given in both of the bills of exceptions.

JUDGMENT AFFIRM Eli.