King v. Anderson

20 Ind. 385

Opinion

Hanna, J.

This was a suit by a portion of the heirs of John King, deceased, to recover rents from said Anderson, for the occupation by said Anderson of the real estate left by said King at his death, for two years — one after that event, one. before the same.

The answer was that said lands were occupied under a contract with the deceased, by which rent was to be paid on certain terms, in kind; that said rents had been paid to King for the first year, and to the administrator of his estate for the-second.

The evidence supported the answer- The finding and judgment were for the plaintiffs.

The general question is, therefore, whether the personal representative was entitled to the said rents, as.they became due upon the contract of the deceased.

It is said in Taylor, on Landlord and Tenant, sec. 390, that rents, which have accrued previous to the death of the lessor, are collectable by the personal representative; those that ac* crue afterwards by the heir. 25 Wend. 456; Cole v. Patterson, 1 Sandf. 287; Duffa v. Mayo, 2 Dana Ky. R. 54; 15 Ind. 152.

Although this expresses the general legal rule which must finally control in the settlement of this controversy, yet we «can not affirm this judgment, on account of other points made. "" "■

The complaint embodies a list of names as heirs, &c., and :as plaintiffs. Perhaps, if it had been continued in that shape, the judgment ..should remain, ;as it does not profess to settle .any question as between said plaintiffs as to their respective rights. But;the record shows that .some of the persons thus named as heirs withdrew, on leave., .on the ground that said : suit had been instituted without their authority. As the ■record shows part of the plaintiffs to have been children, and ipart grand,children, and does not show the relative value of -the interest represented by those who remained, as plaintiffs, vthe complaint was, perhaps, for that reason, defective, and 7 the ruling on the demurrer thereto should have been different. ■But, however that may be, the evidence is in the record, and - does not disclose the relative amount due to those who, at the trial, werp plaintiffs; and we can not, therefore, see in - what, measure the Court fixed the sum due to said plaintiffs.

The administrator might have been made a party, upon the , disclosure of the fact that rents had been paid to him and used for the benefit of said heirs; that the whole matter could “.have been at once adjusted. For these reasons, and because all the persons that are interested, &c., are not made parties, the judgment is reversed.

A. J. Boone, for the appellants.

Per Curiam.

The judgment is reversed, with costs. Cause remanded.