Currier, Judge,
delivered tbe opinion of tbe court.
Tbis suit was commenced before a justice of tbe peace to recover possession of certain premises let by deed of lease by tbe plaintiff and bis former wife to one of tbe defendants, for a term of two years, commencing May 15, 1867, and ending May 15, 1869. The proceeding is founded upon the statute in relation to landlords and tenants (Gen. Stat. 1866, p. 741, §§ 38-5). Tbe defense, in substance, is that the plaintiff’s interest in tbe premises, and tbe rents reserved by tbe lease, terminated prior to tbe accrual of tbe rent alleged to be in arrear, and that, consequently, no right of action has accrued to him to recover either tbe rents or possession of tbe leased premises.
It appears that one Whittier held tbe legal title to tbe premises in question, in trust for tbe sole use and benefit of tbe plaintiff’s wife — tbe rents, issues and profits being subject to her control and disposition, apart from and independent of her husband. Mrs. Shields intermarried with tbe plaintiff subsequent to tbe execution of tbe deed vesting in Whittier tbe legal title to tbe property, in trust, as above stated. She died August 17, 1868, leaving tbe plaintiff surviving her. Tbe rent, stated in tbe complaint to be in arrear, accrued between tbe 15th of September, 1868, and tbe 15th of October of tbe same year, being two months, at $100 each.
The deed of lease referred to, under which tbe rent is claimed to have accrued, was executed by Shields and wife subsequent to their intermarriage. Tbe rent reserved was payable in monthly installments of $100 each, each month’s rent being embodied in a promissory note, signed by tbe lessee and payable to tbe order of tbe lessors, namely, “Ellen M. and James Shields.”
Mrs. Shields died without issue of tbe marriage, leaving as her only child and heir at law a daughter by a former husband; her whole estate thereupon descending immediately to tbis daughter, [86]*86including the rents reserved by the aforesaid lease, as the defendants claim. The plaintiff, however, insists that the rents belong to him as the appointee of his wife. His proposition is that the the notes, being made payable to him and his wife, in law, were made payable to him alone, and that the rents were thus appropriated to his use by his wife’s appointment.
I do not concur in that proposition. The appointment was not to the husband alone, but to the husband and wife jointly. The transaction evinces a purpose on the part of Mrs. Shields to appropriate the rents to her own use, as well as to the use of her husband. The property belonged .to her as her separate estate, and she was empowered to dispose of it as she pleased. She joining her husband in the lease, granted to the lessee an estate for two years, reserving rent in the form of notes payable to the joint order of herself and husband. These notes were neither real estate nor personal chattels in possession, but choses in action, and the surviving joint payee took them by survivorship.
“An executory contract,” says Robertson, J. (10 Bosw. 314), “ by its mere form survives to the wife when made in her name or the joint names of herself and husband.” The converse of this proposition must be equally true — that is, the contract will survive to the husband when he is the survivor. It has often been held that a promissory note, payable to husband and wife, will go to the latter, and not to the husband’s representatives, where the wife is the survivor. (6 M. & W. 423; 5 Simons, 35; 16 Mass. 432 ; 4 Verm. 336; Tyler on Inf. & Cov. 376 et seq.) And so where the husband is the survivor, he must take in like manner. The title to these notes, then, vested in the plaintiff as the sole owner upon the death of Mrs. Shields, and not before; but that was sufficient for the purposes of this particular suit.
Hill v. Sanders, 2 Bing. 112, cited by the defendants, is inapplicable to the present controversy. In that case the rent was reserved to the husband and wife, and to the heirs of the latter. It was thus expressly provided that upon the death of the wife the rent should go to her heirs, and not to her husband.
A recovery in this suit of the rent included in the notes, however, is resisted upon the further ground that the plaintiff in his [87]*87complaint did not ask for a judgment for rent. That was not necessary.
The statute (§83) definitely prescribes what the complaint shall contain, and dispenses with any form of prayer. The plaintiff averred all that the statute required as a condition to the recovery of rent. It was the aim of the Legislature to disencumber these proceedings of all mere technicality.
Again, the statute (§ 35) makes it the duty of the magistrate to render a judgment for rent, upon certain facts being made to appear, although the complaint asks no judgment of that character. The complaint, as prescribed by the statute, contains no prayer for judgment. The judgment follows from the facts averred and proved, regardless of the formalities of the complaint. The. statute fixes that, declares what judgment shall be rendered, and, as already remarked, dispenses with a prayer for judgment.
Under the act of 1855 (R. C. 1855, pp. 1016-17; §§ 33, 35), no rent was recoverable, but that act is identical with the present enactment (Gem Stat. 1865, pp. 741-42, §§ 33, 35) so far as the complaint and proofs are concerned — that is, a complaint and proofs which, under the former enactment, would entitle a party to a judgment for possession alone, under the latter enactment would entitle him to a judgment for the possession and also for the rent in arrear. The two acts differ in respect to the judgment to.be rendered, and not in reference to the preliminary proceedings, except as will be presently considered.
The latter enactment (§35) contains a final proviso as follows : “ And provided further, that, if the. plaintiff so elects, he may sue for possession alone, without asking for a payment of the rent due.” It is this proviso that introduces confusion and.uncertainty. What was its object? Manifestly it was not intended to have the effect of withdrawing from the plaintiff any right-secured to him by the other parts of the enactment. The proviso was clearly enacted in the interest of the landlord, • and was intended to enlarge and not to restrict his rights. The purpose was thereby to secure to him a privilege not supposed to have been granted in the other parts of the act. It seems to have been [88]*88framed upon the theory that, as the act stood, a judgment for possession would bar the landlord’s right to sue for rent in another action, unless the first suit was so brought as to exclude the inference that it was intended to embrace rents as well as the question of possession. Hence it was enacted by the proviso that the landlord might, if he so elected, sue for the possession alone, without prejudice to his right to sue for rent in a subsequent proceeding. That was the whole aim of the proviso, so far as I am able to discover its purpose. If it had been the intention of the Legislature to limit the right to recover rent to actions wherein the complaint should contain a prayer for a judgment for rent, it would have been very easy to have said so. A few apt words inserted in section 35 at the appropriate place would have made the whole matter clear and plain. To accomplish that object there was no occasion to resort to this somewhat singularly phrased proviso.
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Currier, Judge,
delivered tbe opinion of tbe court.
Tbis suit was commenced before a justice of tbe peace to recover possession of certain premises let by deed of lease by tbe plaintiff and bis former wife to one of tbe defendants, for a term of two years, commencing May 15, 1867, and ending May 15, 1869. The proceeding is founded upon the statute in relation to landlords and tenants (Gen. Stat. 1866, p. 741, §§ 38-5). Tbe defense, in substance, is that the plaintiff’s interest in tbe premises, and tbe rents reserved by tbe lease, terminated prior to tbe accrual of tbe rent alleged to be in arrear, and that, consequently, no right of action has accrued to him to recover either tbe rents or possession of tbe leased premises.
It appears that one Whittier held tbe legal title to tbe premises in question, in trust for tbe sole use and benefit of tbe plaintiff’s wife — tbe rents, issues and profits being subject to her control and disposition, apart from and independent of her husband. Mrs. Shields intermarried with tbe plaintiff subsequent to tbe execution of tbe deed vesting in Whittier tbe legal title to tbe property, in trust, as above stated. She died August 17, 1868, leaving tbe plaintiff surviving her. Tbe rent, stated in tbe complaint to be in arrear, accrued between tbe 15th of September, 1868, and tbe 15th of October of tbe same year, being two months, at $100 each.
The deed of lease referred to, under which tbe rent is claimed to have accrued, was executed by Shields and wife subsequent to their intermarriage. Tbe rent reserved was payable in monthly installments of $100 each, each month’s rent being embodied in a promissory note, signed by tbe lessee and payable to tbe order of tbe lessors, namely, “Ellen M. and James Shields.”
Mrs. Shields died without issue of tbe marriage, leaving as her only child and heir at law a daughter by a former husband; her whole estate thereupon descending immediately to tbis daughter, [86]*86including the rents reserved by the aforesaid lease, as the defendants claim. The plaintiff, however, insists that the rents belong to him as the appointee of his wife. His proposition is that the the notes, being made payable to him and his wife, in law, were made payable to him alone, and that the rents were thus appropriated to his use by his wife’s appointment.
I do not concur in that proposition. The appointment was not to the husband alone, but to the husband and wife jointly. The transaction evinces a purpose on the part of Mrs. Shields to appropriate the rents to her own use, as well as to the use of her husband. The property belonged .to her as her separate estate, and she was empowered to dispose of it as she pleased. She joining her husband in the lease, granted to the lessee an estate for two years, reserving rent in the form of notes payable to the joint order of herself and husband. These notes were neither real estate nor personal chattels in possession, but choses in action, and the surviving joint payee took them by survivorship.
“An executory contract,” says Robertson, J. (10 Bosw. 314), “ by its mere form survives to the wife when made in her name or the joint names of herself and husband.” The converse of this proposition must be equally true — that is, the contract will survive to the husband when he is the survivor. It has often been held that a promissory note, payable to husband and wife, will go to the latter, and not to the husband’s representatives, where the wife is the survivor. (6 M. & W. 423; 5 Simons, 35; 16 Mass. 432 ; 4 Verm. 336; Tyler on Inf. & Cov. 376 et seq.) And so where the husband is the survivor, he must take in like manner. The title to these notes, then, vested in the plaintiff as the sole owner upon the death of Mrs. Shields, and not before; but that was sufficient for the purposes of this particular suit.
Hill v. Sanders, 2 Bing. 112, cited by the defendants, is inapplicable to the present controversy. In that case the rent was reserved to the husband and wife, and to the heirs of the latter. It was thus expressly provided that upon the death of the wife the rent should go to her heirs, and not to her husband.
A recovery in this suit of the rent included in the notes, however, is resisted upon the further ground that the plaintiff in his [87]*87complaint did not ask for a judgment for rent. That was not necessary.
The statute (§83) definitely prescribes what the complaint shall contain, and dispenses with any form of prayer. The plaintiff averred all that the statute required as a condition to the recovery of rent. It was the aim of the Legislature to disencumber these proceedings of all mere technicality.
Again, the statute (§ 35) makes it the duty of the magistrate to render a judgment for rent, upon certain facts being made to appear, although the complaint asks no judgment of that character. The complaint, as prescribed by the statute, contains no prayer for judgment. The judgment follows from the facts averred and proved, regardless of the formalities of the complaint. The. statute fixes that, declares what judgment shall be rendered, and, as already remarked, dispenses with a prayer for judgment.
Under the act of 1855 (R. C. 1855, pp. 1016-17; §§ 33, 35), no rent was recoverable, but that act is identical with the present enactment (Gem Stat. 1865, pp. 741-42, §§ 33, 35) so far as the complaint and proofs are concerned — that is, a complaint and proofs which, under the former enactment, would entitle a party to a judgment for possession alone, under the latter enactment would entitle him to a judgment for the possession and also for the rent in arrear. The two acts differ in respect to the judgment to.be rendered, and not in reference to the preliminary proceedings, except as will be presently considered.
The latter enactment (§35) contains a final proviso as follows : “ And provided further, that, if the. plaintiff so elects, he may sue for possession alone, without asking for a payment of the rent due.” It is this proviso that introduces confusion and.uncertainty. What was its object? Manifestly it was not intended to have the effect of withdrawing from the plaintiff any right-secured to him by the other parts of the enactment. The proviso was clearly enacted in the interest of the landlord, • and was intended to enlarge and not to restrict his rights. The purpose was thereby to secure to him a privilege not supposed to have been granted in the other parts of the act. It seems to have been [88]*88framed upon the theory that, as the act stood, a judgment for possession would bar the landlord’s right to sue for rent in another action, unless the first suit was so brought as to exclude the inference that it was intended to embrace rents as well as the question of possession. Hence it was enacted by the proviso that the landlord might, if he so elected, sue for the possession alone, without prejudice to his right to sue for rent in a subsequent proceeding. That was the whole aim of the proviso, so far as I am able to discover its purpose. If it had been the intention of the Legislature to limit the right to recover rent to actions wherein the complaint should contain a prayer for a judgment for rent, it would have been very easy to have said so. A few apt words inserted in section 35 at the appropriate place would have made the whole matter clear and plain. To accomplish that object there was no occasion to resort to this somewhat singularly phrased proviso. The proviso does not say that a party wishing to recover rent in his possessory action shall state the fact in his complaint. It says nothing of the kind. Under the statute the recovery of rent, if the action is sustainable at all, is a matter of course, unless the plaintiff elects to cut himself off from that recovery by his mode of suing. He may do that if he chooses, and sue for his rent in another action. That is what the proviso amounts to.
But the amount of rent recoverable in the possessory suit cannot “ exceed the jurisdiction of.a justice of the peace. ” In the case at bar the justice rendered judgment for $200, being the amount of rent then due. The Circuit Court, upon appeal, however, and a trial de novo, rendered a judgment for $758.52, an amount greatly in excess of the jurisdiction of a justice of the peace. Sec. 41 of the landlord and tenant act (Gen. Stat. 1865, p. 743), and section 23, in regard to appeals from justices of the peace (Gen. Stat. 1865, p. 725), are referred to as warranting the judgment of the appellate court. The section.last referred to (§ 23) authorizes the judgment against the surety upon the appeal bond as well as against the principals therein. That is the substance of it. It has no bearing upon the question respecting the amount for which the judgment may be rendered. The [89]*89other section (§41) merely provides in what way and upon what conditions a case may be taken by appeal from the justice’s court to the Circuit Court. That is the extent of it. It does not authorize the appellate court to render a judgment for an amount in excess of the justice’s jurisdiction. The excess of the judgment in this case was not the result of the accumulation of interest, or any other matter merely incidental to the original debt sued for. The judgment embraced five months’ rent not due when the suit was brought, and it will be remembered that this is not a proceeding under the forcible entry and detainer act. A judgment in exeess of the justice’s jurisdiction was not warranted.
Whether there was a forfeiture of the lease, and whether rent ■could be recovered by the plaintiff subsequent to the forfeiture, ■are questions that I do not deem it necessary to consider. The judgment must at least be limited to an amount within the jurisdiction of the justice.
The judgment will be reversed and the cause remanded.
The ether judges concur.