Elder v. Henry

• Court: Tennessee Supreme Court
• Writing for the Court: Caruthers
• Citation: Elder v. Henry, 34 Tenn. 81 (Tenn. 1854)
• Decision Date: 31 December 1854
• Parties: JOSHUA ELDER v. G. A. HENRY, Administrator, etc.

34 Tenn. 81

JOSHUA ELDER

v.G. A. HENRY, Administrator, etc.

Supreme Court of Tennessee.

December Term, 1854.

FROM MONTGOMERY.

The plaintiff brought this action of debt in the circuit court of Montgomery against the defendant as administrator, for the use and occupation of certain real property in the town of Clarksville, by defendant's intestate during his lifetime, from the year 1847 until his death, in 1851. The writ was issued the 20th of August, 1853. The defendant pleaded the bar of the statute of limitations of 1715, ch. 27, sec. 5, which, upon the trial at September term, 1854, Judge Pepper held to be applicable to the action. The plaintiff's recovery was limited accordingly. He moved for a new trial, which was overruled; whereupon he tendered his bill of exceptions, and prosecuted a writ of error to this court.

James E. Bailey, for the plaintiff, said that the word “rent” has a legal technical signification, and means a certain profit which issues yearly out of lands and tenements. Com. on L. & T. 95, marg. p., in Law Lib.

The profit, to be “rent,” must, therefore, be certain and fixed in amount. Id. 95, 96.

It must be payable annually. It must be founded upon an express contract, for without such a contract neither the sum to be paid nor the time when payable could be fixed.

The rent thus defined is a debt of a very high order. It is of as high a nature as a specialty, although reserved by parol, and may be paid by an executor in preference to a specialty debt, for it savors of the realty. 29 Eng. C. L. Rep. 168.

It had, in England, by common law and statute, annexed to it the privilege of being collected by distress.

The action of debt for rent was founded upon privity of contract in respect of the estate; as soon, therefore, as the privity of estate was transferred, the remedy by debt was gone. Com. on L. & T. 422.

And in many cases it was a local action. Id. 428.

To this action defendant might plead, in bar, that on the day the rent became due he was upon, and continued to be upon, the land, ready and willing to pay the rent. Id. 529.

And as his liability to pay rent arose upon his contract, it was no defense to the action for rent to say he never occupied. Id. 536.

As at common law it was not every reservation of rent, nominally, which constituted a rent, properly so called (Id. 364), so, where there was no specific rent agreed upon, the action for use and occupation was the only remedy. Per Bayley, J., 7 Eng. C. L. Rep. 117.

In the first, as in the last, case, debt for rent would not lie, because it was not rent due.

The ancient form of “debt for rent” has given way to the more convenient action of debt for use and occupation. In this action the defendant is merely charged in respect of his occupation; it having been held unnecessary to set forth any demise, or for what term, or at what rent the lands were demised, or for what space of time, or at what period the defendant occupied them. The action, also, is transitory. All that is necessary to state is that the defendant is indebted for the use and occupation of certain premises belonging to plaintiff, and occupied by defendant for a long time. Com. on L. & T. 431.

This action is distinguished from the action of “debt for rent,” that it is not founded upon an express contract; that it is not for a sum certain and fixed by the parties, but for a reasonable remuneration for the use of the land (41 Eng. C. L. Rep. 810); that it is not for a sum of money issuing annually from the land, the remuneration accruing from day to day. 41 Eng. C. L. Rep. 810.

It is in all cases a transitory action. Com. on L. & T. 431. It is not necessary to describe the land or set forth any demise. The defendant can be charged only for the time he actually occupied the land.

The action is of modern origin--the first action of the kind in England being in 32 Geo. III, which was subsequent to the year 1715, when the statute relied on was passed. Per Denman, J., 41 Eng. C. L. Rep. 410; Com. on L. & T. 431.

The foundation of the action is this: Where land of one person by his permission is occupied by another, without any express contract, a promise to remunerate him is raised by the law. The obligation is co-extensive with and measured by the enjoyment, and as soon as the occupation ceases the implied contract ceases. In such cases the action of debt for rent would not lie. The action was wanted for no other case than where the occupation was for no certain time at no fixed rent, for in all other cases the action of debt for rent was the appropriate remedy. Per Denman, C. J., delivering the opinion of the court of queen's bench. 41 Eng. C. L. Rep. 410.

This, then, is not an action of “debt for arrearages of rent,” such as was contemplated by our act of 1715, and the only statute of limitations applicable to this case is the statute 21 Jas. 1.

The statute 21 Jas. I., although it recognizes actions of “debt for arrearages of rent” as differing from actions “founded upon a contract without specialty,” yet makes the limitation the same, and so do the statutes of the different states of the Union, with the exception of Tennessee and North Carolina. See appendix to Ang. on Lim. And hence, it is impossible to find, either in England or America, any authority directly upon this question of the statute of limitations.

Shackleford, for the defendant, cited and relied upon the Acts of 1715, ch. 27, sec. 5.

Caruthers, J., delivered the opinion of the court.

This is an action of debt for the use and occupation of a house and lot in the town of Clarksville, from 1846 to the death of the intestate, in 1851.

The defendant felt it to be his duty, as administrator, to rely upon the defence of the statute of 1715, ch. 27, sec. 5, by which “actions of debt for arrearages of rent” are limited to three years. The court charged the jury that the act of 1715 applied to this action, so the plaintiff must, therefore, be limited in his recovery to three years from the commencement of his suit.

The plaintiff recovered according to the charge, but believing the limitation to be six years instead of three, appealed in error to this court from the judgment of the court refusing a new trial for this supposed misdirection of the jury.

The single...