Peery v. Fletcher

Decision Date01 July 1919
Citation93 Or. 43,182 P. 143
PartiesPEERY v. FLETCHER.
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Yamhill County; H. H. Belt, Judge.

Action by A. M. Peery, as administrator of the estate of Catherine E. Martin, deceased, against Henry Lee Fletcher. From a judgment overruling a demurrer to defendant's answer and granting a judgment in his favor as for want of reply plaintiff appeals. Reversed, with directions.

This is an appeal by plaintiff from a judgment overruling a demurrer to the defendant's answer and granting a judgment in favor of the defendant as for want of a reply.

The action is brought by the administrator of the estate of Catherine E. Martin, deceased, to recover rent reserved in two leases. On the 17th day of October, 1915, Catherine E Martin, now deceased, was the owner and in the possession of an estate for her own life of two parcels of land containing 56 acres. On that date by her guardian, she leased 45 acres of the tract to the defendant, Henry Lee Fletcher, for the remainder of her natural life. According to the terms of the contract of leasing, the defendant agreed to pay the lessor the sum of $180 per annum, payable on August 1st of each year; the first payment to be made on August 1, 1916.

The complaint alleges that the whole of the real property so leased was tillable, agricultural land, suitable for raising annual crops of grain; that the defendant entered into possession and proceeded to raise such crops and paid the rent for the first year on August 1, 1916; that thereafter defendant cultivated all of the land and planted the same to yearly crops of grain to be harvested during the season of 1917; that Catherine E. Martin died on the 11th day of July 1917, after the crops were planted. The other tract of 11 acres was, in October, 1916, leased by Catherine E. Martin to the defendant, who entered into the possession thereof and agreed to pay the lessor the sum of $4 per acre per year. This land was also cultivated in the same manner as the other tract mentioned.

The defendant answered setting up the leases, particularly alleging that the lessor named therein leased to defendant the real property for and during the natural life of Catherine E. Martin; that the lease provided that it should begin on the 1st day of October, 1915, and that it should terminate at the death of said Catherine E. Martin, that the defendant should pay rent for the premises during the life of the contract of lease, the amounts mentioned in the complaint, and that the rent should mature and become due and payable every year during the natural life of said Catherine E. Martin on the 1st day of August; that she died on the 11th day of July, 1917, and the leasehold estate then terminated that, at the time of the leasing, the defendant was, and now is, the owner in fee simple of two-thirds of the 56 acres so leased, subject only to the life estate therein of Catherine E. Martin for and during her natural life only, and the other one-third belonged to the estate of J. S. Martin, the deceased husband of Catherine E. Martin, subject to the life estate of Catherine E. Martin; that the defendant had been in actual possession of all the land so leased to him ever since the death of Catherine E. Martin as the owner in fee simple of two-thirds thereof, and by the consent of the administrator of the estate of J. S. Martin, deceased, which is still being administered as to the other one-third. Defendant alleges that by reason of the death of Catherine E Martin, on the 11th day of July, 1917, no part of the rent of $224 that would have become due and owing to her on the 1st day of August, 1917, by the terms of the lease, if she had lived until that date, ever became due or payable to her or to her representatives or to the plaintiff, and that all the crops raised on the premises during the year 1917 matured after the death of Catherine E. Martin.

There were two separate answers to the separate causes of action relating to the two tracts of land of the purport above indicated. Plaintiff demurred to defendant's answer for the reason that the same did not state facts sufficient to constitute a defense to plaintiff's complaint. The demurrer was overruled, and, the plaintiff by her counsel having stated that she did not desire to plead further, judgment was entered in favor of defendant for his costs.

W. T. Vinton, of McMinnville (McCain & Vinton, of McMinnville, on the briefs), for appellant.

W. M. Ramsey and L. E. Lange, both of McMinnville (Ramsey, Lange & Nott, of McMinnville, on the briefs), for respondent.

BEAN, J. (after stating the facts as above).

It is submitted on behalf of plaintiff that, where a tenant for life leases the real property to a subtenant, and such tenant plants an annual crop, and his estate terminates by the death of the life tenant after the planting of crops of annual growth and before the day for payment of rent, the undertenant is entitled to such annual crops growing at the time of the death of his lessor as emblements and is entitled to ingress and egress to and from the land for the purpose of removing the same. Therefore, as the defendant had the full benefit of the issues and profits of the land for the full year, he should pay the rent to the representative of the life tenant, citing 2 Blackstone's Comms. (Lewis' Ed.) 120-123; 4 Kent's Comm. (14th Ed.) p. *73; Washburn on Real Property (6th Ed.) 120 et seq.; Noble v. Tyler, 61 Ohio St. 432, 56 N.E. 191, 48 L. R. A. 735, 736; 16 Cyc. 620, subd. 4; Carman v. Mosier, 105 Iowa, 367, 75 N.W. 323, 324.

It is the position of counsel for defendant that the rule in regard to emblements does not apply if the owner of life estate leases the land to a tenant and the tenant covenants to pay him a money rent, and the lessor dies before the rent falls due, his representative cannot collect the rent because the life tenant's estate in the land terminated before the rent accrued, and the rent cannot be apportioned as to time, and money cannot be considered emblements.

The doctrine of emblements applies with full force in regard to the undertenant. He has even greater privileges than his lessor, the life tenant, whom he represents; as in a case where such lessor forfeits his right to emblements by his own act; such act, or forfeiture, does not deprive the undertenant of his emblements. 2 Blackstone's Comms. (Lewis' Ed.) 123; 4 Kent's Comm. (14th Ed.) *74; 5 M. A. L. § 406, p. 317; Edghill v. Mankhey, 79 Neb. 347, 112 N.W. 570, 11 L. R. A. (N. S.) 689; Bradley v. Bailey et al., 56 Conn. 374, 15 A. 746, 1 L. R. A. 427, 428, 7 Am. St. Rep. 316. In Reed v. McGouirk (Tex. Civ. App.) 35 S.W. 527, it was held that if a subtenant of a life tenancy rents only so many acres of land, on which to make a crop, with no right to retain the land after the crop is taken off, the life tenant's administrator has the right to all the rent reserved by the contract; but if the use of dwellings and pastures, and other valuable rights, are embraced in the rent contract, which, at the death of the life tenant, pass to the reversioner, the administrator is entitled to the full amount of the rent contract, less the fair proportionate value of the use of such of the premises as the tenant's crops do not occupy, estimated from the death of the life tenant to the end of the rental term as fixed by the contract.

The doctrine of emblements is not decisive of this case. The particular question is in regard to the rent upon which the rule in respect to emblements often has a bearing.

By the rule of the common law, where a life tenant leases the estate for a term of years at a yearly rent and dies before one of the rent days, the rent cannot be apportioned, and the tenant could quit free of rent from the last rent day. The rent could not be collected by the personal representatives of the lessor for the reason that the lease terminated before any rent became due; and it could not be collected by the reversioner, as the lessor's death terminated the lease. It has been held, however, that, if the tenant remains in possession after the termination of the life estate and the reversioner acquiesces, the latter may recover for use and occupation from the lessor's death. Hoagland v. Crum, 113 Ill. 365, 55 Am. Rep. 424; Guthmann v. Vallery, 51 Neb. 824, 71 N.W. 734, 66 Am. St. Rep. 475. It has also been held that, if the lessee of a tenant for life remains in possession after the termination of the life estate without any contract with the reversioner and pays the full amount of rent reserved in the lease to the administrator of the tenant for life the reversioner has no claim against the estate of the life tenant for the rent thus paid.

The Statute of 11 Geo. II, c. 19, § 15, gave the executor or administrator of a life tenant, on whose death a lease granted by him had determined, the right to recover of the tenant a ratable proportion of the rent from the last day of payment to the death of the lessor. The date of the Statute of 11 Geo. II is given as 1738. In some jurisdictions in this country statutes of similar import have been enacted or such statutes have been adopted by the courts as a part of the common law. Perry v. Aldrich, 13 N.H. 343, 38 Am Dec. 493; note L. R. A. 1915C, p. 208. The English statute in terms applied only to leases granted by a life tenant where the life tenant died, and it has been held in this country, in a case where the statute was assumed to be in force, that the statute did not apply to a lease by one holding a life estate pur autre vie. Perry v. Aldrich, 13 N.H. 343, 38 Am. Dec. 493. In some jurisdictions in this country, it has been held that the English statute was not in force and that the common law remains unchanged in this respect....

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27 cases
  • Smothers v. Gresham Transfer, Inc.
    • United States
    • Oregon Supreme Court
    • May 10, 2001
    ...had reference to that law as it existed, modified and amended by the English statutes passed prior to the Revolution." Peery v. Fletcher, 93 Or. 43, 53, 182 P. 143 (1919). It is undisputed that, at the time of the American Revolution, the common law recognized a cause of action for negligen......
  • Smith v. Smith
    • United States
    • Oregon Supreme Court
    • September 9, 1955
    ...court to modify ancient and outmoded rules of the common law under the compulsion of changed economic or social conditions. Peery v. Fletcher, 93 Or. 43, 182 P. 143; United States F. & G. Co. v. Bramwell, 108 Or. 261, 217 P. 332, 32 A.L.R. 829; Turney v. J. H. Tillman Co., 112 Or. 122, 228 ......
  • State v. Dietz
    • United States
    • Montana Supreme Court
    • August 4, 1959
    ...was fixed at the time of the beginning of the American Revolution which would be about the year 1775 A.D. In Peery v. Fletcher, 1919, 93 Or. 43, 182 P. 143, at pages 146, 147, it is said: 'What may be the common law in one state is not necessarily so considered in another * * * In some of t......
  • State v. Waterhouse
    • United States
    • Oregon Supreme Court
    • February 13, 1957
    ...of Hood River, 114 Or. 112, 227 P. 1065; Pacific Power & Light Co. v. Bayer, 273 U.S. 647, 47 S.Ct. 245, 71 L.Ed. 821; Peery v. Fletcher, 93 Or. 43, 182 P. 143. ORS 1.160 'When jurisdiction is, by the constitution or by statute, conferred on a court or judicial officer, all the means to car......
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