Drue v Baylie
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1826 |
| Date | 01 January 1826 |
| Court | High Court |
English Reports Citation: 89 E.R. 299
THE COURTS OF KING'S BENCH AND COMMON PLEAS
case 528. drue v. baylie. S. C. ante, p. 392. An administrator makes an underlease of the intestate's term rendering rent to himself, his executors, &c. and dies: his executor, and not the administrator de bonis non, shall have the rent, and shall be chargeable with it as assets, in the nature of an executor de son tort. But (semb. ante, p. 392,) he cannot distrain for it. Covenant for payment of rent, and a bond to perform covenants, are defeated by the deter tnination of the rent. Ow. 136. The case was this : An administrator, possessed of a term left by the intestate, demises it for part of his time, rendering a rent to him, his executors, administrators and assigns; and there is a covenant to pay the rent, and a bond to perform covenants; the administrator dies, and makes his executor, the plaintiff, who brings his action upon this bond. The only question was, whether or no the executor of the administrator had right to this rent; for it was admitted, that this being a covenant for the payment of rent, and the bond to perform the covenants, that if the rent is gone, so are the covenant and the bond too. And it was argued by West pro def, that this was a rent-service, and so could not come to the executor of the administrator, but would wait upon the reversion, which should go the administrator de bonis non of the intestate ; and the plaintiff here, who is executor, is a mere stranger to the reversion. 2 Ed. 4, 5, 11. 2. If the lessor (lessee) in this case should be liable to this action, then he should be doubly charged ; for the administrator de bo-nia non would sue him for the rent, by reason he hath the reversion. 3. By this means the creditors of the intestate would be defrauded, for this executor of the administrator is not liable to any action, and such an executor shall have no exe-[403]-cution of a judgment obtained by the administrator in right of the intestate. 5 Co. 9. Fide Hutton, 79. Lat. 267. Serjeant Stroud pro quer. argued, that the administrator de bonis non could not have it, because he comes in paramount the reservation; and that is the reason why in Chin's case in 10 Co. where tenant for life reserves a rent payable at Michaelmas, or forty days after, and dies within the 40 days, the reversioner shall not have this rent, because he comes in paramount the reservation ; but where tenant in fee makes such a lease, his heir shall have...
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