HARRIS EX'R. v. VICKERS, 1 Del. 6 (1832)

JAMES HARRIS Executor of BENTON HARRIS vs. NATHAN VICKERS.

Superior Court of Delaware.
Spring Sessions, 1832.

Page 7

By the Court. CLAYTON, C. J. —

If Benton Harris were tenant for life, his ex’r. could not maintain a general indebitatus assumpsit for an apportionment. He must count in a special action on the case under the act of assembly. It was so decided in the case of Joseph Parsons, adm’r. vs. Allee, in Kent, at the Nov. Term, 1831.[a] .

On the other point, we are of opinion that an ex’r. cannot recover accruing rents after the death of the testator; and, therefore, there must be a Judgment of nonsuit.

[a] “Joseph Parsons, being tenant for life, in his lifetime, let to Abraham Allee a tract of land by parol, from year to year, rendering rent one-third of the corn, and two-fifths of the wheat. The letting was from the 1st of March. Parsons died on the 20th of October. To recover under the Stat. 11 Geo. 2 Ch. 19., a proportion of the rent the adm’r. after the expiration of the year, brought. his action, and filed his narr in general indebitatus assumpsit alledging that Alice was indebted to Parsons in his lifetime for the use and occupation of the premises for a long time then elapsed, in consideration whereof, he promised to pay the said Parsons in his lifetime, c. It was objected that general indebitatus assumpsit will not. lie. Second, that it should have been alledged that deft. being liable to the ex’r., undertook and promised to pay him as ex’r. Accruing rent being neither debitum no solvendum, a release of all actions does not release such rent Lilt. Sect. 513; Co. Litt. 292-6. There being no debt or duty at the death of Parsons, it would seem that in an action brought by his adm’r. after his death the declaration ought to have stated the facts specially, to wit: the use and occupation by permission of Parsons in his life time; the death of Parsons; the legal liability of the tenant to pay to the adm’r., and his undertaking to pay.

(See form of declaration for ex’rs. Kent due from deft. 25th March, 1789, to 25th June, 1789. The testator died in the middle of the quarter. In a suit by ex’r. of a termor for rent which became due after the death of the testator, c.” Impeys. Plead. 360; Chitty Pl. 11, 38-9.)