#### ESTHER J. HAYES v. J. W. and J. T. WRENN.

(Filed 11 November, 1911.)

Estates — Leases — Tenants—Remaindermen—Rents—Interpretation of état-utes.

The common law relating to the crops of a tenant growing upon lands, at the termination of the life estate of his lessor, withholding from the remainderman his part of the rent for the land during the current crop year, and accruing after the life estate has fallen in, has been changed by statute, Revisal, sec. 1990, the effect of which is to extend the lease for the current crop year, upon the consideration of the payment of rent; and where the rent under the contract of lease is for a certain fixed sum of money, the remainderman is entitled only to his proportionate part of that sum, according to the period of payment elapsing after the termination of the life estate of the lessor.

Appeal by plaintiff from Lyon, J., at May Term, 1914, of GbaNVille.

Tbis is an action to recover rent. The plaintiff’s grandmother owned a tract of 365 acres of land in Yance County. By her will tbe .grandmother left the property to plaintiff, subject to the life estate of Mrs. Callie Hayes (or Clayton), mother of plaintiff. The life .tenant died 18 May, 1913, and the property passed to plaintiff.

*230In 1912 tbe life tenant rented tbe place to defendants for five-years from 1 November, 1912, for $500. This rent was paid in advance by tbe Wrenns. They then sublet to tbeir codefendants, tbe Dickersons. These subtenants paid rent of about $500 for tbe place in 1912. In 1913 they raised a crop on tbe place worth $3,250. Out of this-they paid guano bills of $312.45 and paid one-fourth of tbe balance to tbe Wrenns.

In tbe fall of 1913 plaintiff returned to this State from Dallas, and at her request a guardian was appointed for her. He demanded possession of tbe place from tbe Wrenns, together with 227/365 of tbe actual rent received for that year. Both demands were refused by defendants until January, 1914, when possession of tbe place was relinquished by them, but division of tbe rent was still refused. Thereupon this action was instituted, tbe guardian contending that be is entitled to 227/365 of tbe rent actually paid, and tbe defendant that be is only entitled to recover a proportionate part of $100, tbe rent for tbe year reserved by tbe lease.

His Honor charged tbe jury that plaintiff was bound by tbe contract entered into by her mother; that tbe remainderman was entitled to a part of tbe rent for tbe rental year in proportion to tbe time that elapsed after tbe death of tbe life tenant as compared with tbe time that elapsed before her death, and therefore that if tbe jury should find that tbe lease introduced in evidence was executed by Mrs. California Hayes (or Clayton), then they should answer tbe issue “Yes,” and allow plaintiff a proportional part of tbe $100 agreed upon between defendants Wrenn and tbe life tenant for tbe year from 1 November, 1912, to 1 November, 1913. Plaintiff excepted.

Under tbe instructions of tbe court tbe jury answered tbe issue “Yes; $45\ 50,” and from tbe judgment rendered thereon tbe plaintiff appealed.

John A. Hester and D. G. Brummitt for plaintiff.

T. T. Hicks for defendant.

Allen, J.

Under the common law, “tbe tenant for life, or bis representative, shall not be prejudiced by any sudden determination of bis estate because such a determination is contingent and uncertain. Therefore, if a tenant for bis own life sows tbe lands, and dies before harvest, bis executor shall have tbe emblements or profits of the crop, for tbe estate was determined by tbe act of God, and it is a maxim in tbe law that actus dei nemini facit injuriam. Tbe representatiyes, therefore, of tbe tenant for life shall have tbe emblements to compensate for tbe labor and expense for tilling, manuring, and sowing tbe lands, and also for tbe encouragement of husbandry, which being a public benefit, tending to tbe increase and plenty of provisions, ought to have tbe utmost security and privilege tbe law can give it.” 2 Bl. Com., 122; Taylor on L. and T., 355; Gee v. Young, 1 Hay, 17; Poindexter v. Blackburn, 36 N. C., 286.

*231“A tenant of lands for an uncertain term, such, as a tenant for life or at will, is entitled by way of emblements to tbe annual production of bis annual labor, altbougb bis estate may bave been terminated by tbe act of God or of tbe law before be shall bave harvested tbe same. Where tbe tenant for life makes a lease for years, and dies before tbe expiratiop. of tbe term, tbe undertenant or -tenant for years is likewise entitled to emblements.” 24 Oye., 1070-1.

Tbe General Assembly.of this State, having in mind these principles and considering tbe injustice to tbe remainderman-of withholding from him tbe part of tbe rent f<?r bis land accruing after tbe life estate bad fallen in, enacted tbe statute which is now section 1990 of tbe Eevisal, which reads as follows: “Where any lease for years of any land let for farming on which a rent is reserved shall determine during a current year of tbe tenancy by tbe happening of any uncertain event determining tbe estate of tbe lessor, tbe tenant, in lieu of emblements, shall continue bis occupation to the end of such current year, and shall then give up such possession to tbe succeeding owner of tbe land, and shall pay to such succeeding owner a part of tbe rent accrued since tbe past payment became due, proportionate to tbe part of tbe period of payment elapsing after tbe termination of tbe estate of tbe lessor to tbe giving up of such possession.”

Before this statute was passed tbe remainderman would bave received no part of tbe rents in controversy, and bis right now is, therefore, dependent upon tbe construction of tbe statute, which was considered in King v. Foscue, 91 N. C., 116, in which it was held that it was its plain purpose to extend tbe lease for tbe current year to tbe extent of occupancy upon tbe part of tbe tenant until tbe end of tbe lease year current at tbe time of tbe death that terminated it.

Tbe lease is not valid except as supported by tbe consideration to pay rent, and if tbe lease is extended, it would seem to follow that it was only upon condition that tbe rent reserved shall continue, and that it alone should be paid. Tbe language of tbe statute is that tbe tenant shall pay to tbe succeeding owner a part of tbe rent accrued since tbe last payment became due proportionate to tbe part of tbe period of payment elapsing after tbe termination of tbe estate of tbe lessor. No rent has accrued except under tbe terms of tbe lease.

If tbe construction contended for by tbe plaintiff could be maintained, it would render it difficult for a life tenant to make a contract of lease, as tbe tenant would be subject to tbe danger of paying rent under tbe lease for a part of tbe year, and if tbe lease was terminated by death, be could be'held responsible for a higher and different rent by tbe remain-derman.

*232We are, therefore, of opinion that the ruling of his Honor was correct. There is no allegation in the complaint demanding payment of rent for the time the land was occupied by the tenant after 1 November, 1912, the end of the current year under the lease, until its surrender by the defendants — a period of about two months.