Richardson v. Neblett

• Decision Date: 12 April 1920
• Docket Number: 20935
• Citation: 122 Miss. 723,84 So. 695
• Court: Mississippi Supreme Court
• Parties: RICHARDSON v. NEBLETT et al

84 So. 695

122 Miss. 723

RICHARDSON v. NEBLETT et al

No. 20935

Supreme Court of Mississippi

April 12, 1920

March 1920

1. EXECUTORS AND ADMINISTRATORS. Foreign administrator has no interest in personalty situated in Mississippi.

A foreign administrator, though appointed at the domicile of the decedent, had no interest in the personal property of the decedent situated in this state.

2. EXECUTORS AND ADMINISTRATORS. Payment of debt having situs in Mississippi to foreign administrator is no defense against heirs. The payment to a foreign administrator of a debt due a decedent, the situs of which is in this state, affords no protection to the debtor when sued therefor by the heirs of the decedent.

3. DESCENT AND DISTRIBUTION. Rent on land in Mississippi is a debt governed by its laws.

A debt due a nonresident for rent on land situated in this state is personal property situated in this state and governed by its laws regulating the descent and distribution of the property of a decedent.

4. EXECUTORS AND ADMINISTRATORS. Payment of debt to foreign administrator'no defense to suit by heirs unless certified copy of appointment filed.

Although a debt due decedent may not be subject to the statute of descent and distribution of this state, the payment thereof to a foreign administrator affords no protection to the debtor when sued therefor by the heirs of the decedent unless a certified copy of the appointment and qualification of such administrator has been filed with the clerk of the chancery court designated by section 2099, Code of 1906 (section 1767, Hemingway's Code).

5. DESCENT AND DISTRIBUTION. Heirs suing for debt to decedent must allege and prove no necessity of local administration.

In order that the heirs of a decedent may recover in a suit by them against a debtor to the decedent's estate, they must allege, and, if the allegation is denied, prove, that there is no local administrator of the estate, and that there exists no necessity for the appointment of one.

6. LANDLORD AND TENANT. Tenant occupying after expiration of lease is liable as a tenant from year to year.

On the death of the landlord his heir becomes the tenant's landlord, and, if the tenant continues to occupy the leased premises for several years after the expiration of his lease without objection by such heir, his interest in the premises and liability to account to the heir for the use thereof is that of a tenant from year to year.

7. DESCENT AND DISTRIBUTION. Where no administrator is appointed, personalty descends to heir as if realty.

When no administrator of the estate of the decedent has been appointed, and no necessity therefor exists, the personal property owned by the decedent at the time of his death descends directly to his heir and vests in him to the same extent as if it were real property.

8. LANDLORD AND TENANT. Creation of tenancy from year to year not negatived by payment of rent to wrong person.

The payment of rent by a tenant to the administrator of his deceased landlord under the mistaken belief that he was the proper person to receive it does not of itself alone constitute a refusal by the tenant to recognize the title to the land of his deceased landlord's heir, or prevent his continued occupancy of the land from resulting in a tenancy from year to year.

HON JOE MAY, Chancellor.

APPEAL from chancery court of Bolivar county, HON. JOE MAY Chancellor.

Attachment suit by S. S. Neblett and others against W. P. Richardson. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Reversed and remanded.

R. B. Campbell, for appellant.

To avoid repetition of argument I will brief the first and third assignments of error together, as both involve the same legal question.

The first of these assignments is to the effect, that the court erred in decreeing for the appellees, as to the rent for the year 1912; and the third is to the effect, that the court erred in decreeing for the appellees the value of the use and occupation of so much of the plantation as embraced section 16.

The grounds, upon which those assignments of error are based, are two-fold; first, that the rent for the year 1912, having accrued during the year of decedent's death, was payable to the administrators of her estate, and had been paid to them before appellees brought their suit; and that decedent's title to said section 16, being a leasehold interest, passed to the administrators of her estate, who were entitled to the use and occupation thereof, and the rent therefor, for all the years involved, had been paid to them before suit was brought; and second, that, if payment of said rent to the administrators was unauthorized, inasmuch as they were foreign administrators, having received their appointment from the state of Virginia, appellees failed to show any right in them to maintain their suit as heirs, for the rent of 1912, of the use and occupation of said section 16 for any of the years involved.

Ann S. Neblett having leased the plantation to the appellant for the year 1912, and then having died that year, the rent to accrue, for that year, was payable to the administrators of her estate. Code of 1906, sections 2880 and 2056.

That rent was paid by appellant to the administrators of the estate of Ann S. Neblett, deceased, in the state of Virginia, the state of her domicil at the time of her death.

Likewise, upon her death, said section 16 passed to her administrators, inasmuch as her interest therein was merely an unexpired ninety-nine year lease, and, as an incident, said administrators were entitled to the use and occupation thereof, at least until distribution. Dillingham v. Jenkins, 7 S. & M. 479; Faler v. McCae, 56 Miss. 227; Moss Point Lumber Co. v. Harrison Co., 89 Miss. 448; White v. Parker, 42 Miss. 462.

After the expiration of his lease of the plantation for the year 1912, appellant held over and continued to occupy the same, including said section 16 for each of the year 1913, 1914, 1915, 1916 and 1917, and paid rent therefor to said foreign administrators for each of said years, upon the same basis as for the year 1912.

There is no dispute of the fact that said rent was paid to said administrators, which is unmistakably shown by the record; but appellee's contention is that the payment to them as foreign administrators, was unauthorized.

Regardless of the fact that they were foreign administrators, the voluntary payment of the rent to them was authorized by law, and sufficient to discharge appellant from any further payment thereof, or liability thereof. 13 Am. Eng. of Law (Second Edition), 832; Klein v. French, 57 Miss. 662; Boyle v. Griffin, 84 Miss. 41.

But whether such payment was authorized, under our law, or not, the bill does not allege, and the record nowhere shows such facts as entitled the appellee, as heirs to maintain their suit therefor.

To entitle them to recover, as heirs or distributees of the estate, it was necessary for them to allege and prove as a condition precedent to their right of recovery, that there were no debts of the decedent, in this state, or that no administration upon the estate had been granted in this state.

Merely alleging and proving that appellees were the heirs and distributees of the decedent, was not sufficient to entitle them to recover any part of the estate which under the law vested in the personal representatives of the estate.

Granting that ancillary administration is abolished in this state, the court below had no right to assume, in aid of appellee's right to recover, that there were no debts owing by the decedent in this state or that no administration upon the estate had been granted in this state. It was incumbent upon appellees to make out their case, in that regard, which they failed to do.

So, I respectfully submit that the court erred in decreeing for appellees as to the rent for 1912, and as to the value of the use and occupation of said section 16. Wood v. Ford, 29 Miss. 57; Watson v. Byrd, 53 Miss. 480, and cases there cited.

(2) Appellant having leased the plantation for the year 1912, for one thousand two hundred and fifty dollars, with an allowance of one thousand five hundred dollars for repairs to be deducted, and having held over and continued to occupy the plantation for the year 1913 and again--for the year 1914 and again for the year 1915, and again for the year 1916, and again for the year 1917, became a tenant from year to year, at the same rent, and upon the same terms, as for the year 1912; and the court erred in decreeing that appellees were entitled to recover the value of the use and occupation of said plantation, for each of said years, and in not limiting their recovery to the amount of rent, less the deduction for repairs and taxes, as fixed for the year 1912.

The rule in this state, as announced in Usher v. Moss, 50 Miss. 208, is that: "Where the tenant continues to occupy and enters upon another year without objection from the landlord, and with his silence, or tacit consent and approval, a tenancy for another year is thus created."

The rule as stated in Taylor's Landlord and Tenant, section 22 (Ninth Edition), is that: "A tenant for years who holds over after the expiration of his term without paying rent, or otherwise acknowledging a continuance of the tenancy, becomes either a trespasser or a tenant, at the option of the landlord. Very slight acts on the part of the landlord or a short lapse of time, are sufficient to conclude his election, and make the occupant his tenant; and again in section 525 he states that: "Where the landlord suffers the tenant to remain in possession after the expiration of the original tenancy, the law presumes the holding to be upon the terms of the original demise, subject...