#### James C. Norton and John L. Norton *versus*Gertrude Vultee.

Dec. Term, 1828.

An action of *debt,*for the recovery of rent founded on a lease, will lie in favour of the lessor, notwithstanding the lease may have *expired.*

The assignee of a lease, who enters upon and occupies the demised premises, is liable for the rent in like manner with the assignor. In declaring against him, he may be described as assignee in general terms; and the *manner*in which the assignment was made, need not be set forth. But the assignee cannot be made answerable, by the action of *debt,*for the rent of any part of the premises demised, except that which has been possessed and enjoyed by himself; and the rent in such cases may be *apportioned,*the action being founded on the *privity of estate*merely, and not on the privity of contract.

The plaintiffs demised certain premises for a term of years to one F. L. Vultee. The lessee, a short time before the expiration of the term, died, and the defendant, (his widow,) took out letters of administration upon his estate, and continued in possession of *apart*of the premises, until the lease expired. An action of *debt*being brought against her for all the rent which was in arrear at the time of the expiration of the lease, it was held, that she was only liable in this action for the rent of such parts of the premises as had been occupied by her after her husband’s death.

This was an action of debt, brought against the defendant as the assignee of a lease. The declaration was founded on an indenture of lease, made by the plaintiffs to one Frederick L. Vultee, bearing date the 20th of February, 1821, for the term of five years, to commence on the first day of May thereafter, and reserving rent at the rate of $160 per annum, payable quarterly. The declaration stated, that after the making of the lease, to wit, on the first day of April, 1825, “ all the estate, right, title, inter- “ est, and term of years then to come, of the said Frederick L “ Vultee, in and to the said demised premises, *by assignment*thereof, came to and vested in the defendant; whereupon she entered “ upon said premises, became thereof possessed, and so continu- “ ed from thence until the first day of May, when said lease was “ determined.” The declaration further stated, “ that after the making of said indenture, a large sum of money was in a*385
      *v*rear, to wit, the sum of eighty dollars for the two last quarters, *“*ending the first day of May, 1826 for which sum this action was brought.

The defendant pleaded *nil debet.*

The cause was tried before Mr. Justice Hoffman on the 9th day of September 1828. ;At the trial the plaintiffs proved the execution of the lease, and that one Michael Jordan hired the *front part*of the premises described therein for the term of three years, and paid the rent *in advance*to Frederick 1*. Vultée. After the death of Jordan, one McGlade purchasedof Vultee the residue of his term of the *front house,*and paid him therefor in advance* The defendant occupied the rear house on the premises,, but never occupied any part of the front, which was hired by McGlade.

The plaintiffs also proved, that on the 24th of February 1825, letters of administration were granted to *Gertrude Von*Vultee, widow of *Frederick Louis Von Vultee,*by the surrogate of the city and county of New-York. •

Upon this evidence the counsel for the plaintiffs having rested their cause, the counsel for the defendant moved for a non-suit upon the following grounds. First, that the letters of administration did not show the defendant to be the person declared against.

II. That the action of *debt*would not lie, on an expired lease.

III. That the declaration did not state *how*the defendant became liable as assignee.

IV. By the plaintiffs own showing a part only of the premises came to the defendant; the recovery against her, therefore, could only be for the part she occupied.

Upon these objections the presiding Judge declined passing an opinion at the trial, but directed the jury, with the consent of parties, to find a verdict in favour of the plaintiffs for the two quarters rent and interest,, subject to the opinion of the court upon the whole case.

*386The jury returned a verdict'in favour of the plaintiff for ninety three dollars and eighty cents.

A case having been made containing the foregoing facts. *Mr. Mulock*for the defendantnow contended, that the plaintiffs should be non-suited for the reasons assigned at-the trial. That *this*action would not lie on an *expired*lease., The action of debt (he said) grows out of the *privity between the parlies,*and when -that expires, the right to the action expires with it. There never was any privity of *contract*between the plaintiffs and the. defendant in point of. fact, and the lease terminated on the first day of May. No action would lie against the defendant *on the lease,*for she never was a party to it, in any shape, directly or indirectly. [ *Woodfall 326. Cro. Eliz. 264. 2 East’s R.*575.]

II. It'does not appear from the pleadings *hoto*the defendant became assignee. As she is sued in a special character, she should.have been specially declared against: she is *charged*as administratrix, but is not *sued*as such. By this means, the defendant is taken by surprise, for if she had been sued as administratrix, she might have pleaded *plene administravit.*As assignee *in fact,*the defendant-had no notice, and the object is to charge her as assignee in judgment of law. But conclusions of law are not to be pleaded ; the facts from which those conclusions are drawn are to be set forth, that the defendant may know how to answer. In this case the letters of administration could not prove the defendant to Be assignee in fact, and the plaintiffs was bound to show *the manner*in which she became liable to him, for the debt, which they seek, to recover. [1 *Sound.*104.] It will probably be said, that if an executor or administrator cannot get rid of a term, that all the legal consequences of the contract, attach themselves to him. If this be so, then clearly the declaration ought to point out the character in which the defendant is sued. [Cro. *Jac.*549. 1 *Mod.*jR. 188.]

III. The proof does not support the declaratioh. The only evidence adduced to charge the defendant, is to be found in the tetters of administration granted to *Gertrude Von Vultee.*"The *387name of the administratrix is entirely different from that of the defendant, and there is no proof that the same person is meant. This is a fatal variance, [1 *Camp. R.*195. 2 *Esp. R.*726. 2 Bam. *4'*Aid. 756. 4 *Maul. $ Sel.*470.]

IV.' The recovery in this case, at all events, can only be *pro rata,*for the plaintiffs show, that no part of the premises except the rear building ever came into the possession of the defendánt. As she is not charged by privity of *contract,*but only by means of the privity *of estate,*she can only be made answerable for the rent of that portion of the premises which came to her.

A personal *contract*cannot be apportioned; but if the lessee for years rendering rent, grant away part of the land during the term, the rent shall, be apportioned. *\_Shep. Abr. vol.*l.p. 166.]

The plaintiffs of course must have accepted McGlade as a tenant, because the defendant is merely charged as assignee. If so, she is the assignee of that part of the premises only, which came to her, and McGlade was the assignee of the residue. The defendant ought not to be made liable for an estate, which-she never enjoyed, and cannot be made liable as the representative of her deceased husband, unless *charged as such.*[2 East’s *R.*575. 14 *John. R.*89. *Woodfall*280. 2 *Lev.*-231. 3 *Coke*22. *Lilly’s Entr.*133,]

*Mr. Selden contra*for the plaintiffs.

The plaintiffs in this case demised certain premises, for . a term of years, to one Frederick L. Vultee. The lessee before the expiration of the term dies, and the defendant his widow, takes out letters of administration upon his estate, and continues in possession of the premises. The rent for two quarters, having become due, and remaining unpaid, this action of debt is brought against the *administratrix,*to recover that amount.

The plaintiffs have their option to resort to an action of covenant, *or debt,*for either of them will lie in a case like the present, although debt is the most appropriate remedy. [1 *Saund.*233. a. 1. *Woodfall,*323. *chap.*13. *sec.*2. 1 *Lev.*25.]

*388The counsel for the defendant has been misled by the marginal *note to*the case in *Cro. Eliz. 264.;*for upon an examination of the text there, it will be found that the lease in that case had been *cancelled,*and that was the reason why debt would not lie. But the case in' 1 *Lev. 25.*was an action of debt on an expired lease, and is directly in point for the plaintiffs.

II. As there can be no doubt about the propriety of this action, the next question arises upon the state of the pleadings. It was not necessary or practicable for the plainiifts loset ioith ibe *terms*of the assignment *from the lessee*to the defendant. How could *they*know any thing of a new contract between other parties 1 and how can they be compelled to set forth that which cannot be within their knowledge? The lessor has his election to charge the defendant, either as administratrix, or as assignee. She may plead in her defence that she is administratrix, and that the premises do not produce the amount claimed by the landlord, and that she has no assets to make good the deficiency. But where a privity of estate for any part of the premises exists, the plaintiff may bring his action for the whole rent, and the defendant must show the reason why he is not chargeable for the whole. The intermediate transactions between the lessee and his assignees, cannot be known to the lessor, and if there be any special defence against the claim of the landlord fpr, the,whole rent, the defendant should show that by his plea. [1 *Chit. Plea. 353. 2 Ib.*194. *note.*1 *Sound.*1. *note*1. 1 *Salk.*316. *Cro. Jac.*411. *Cro. Eliz.*633. 1 *Salk.*308. 297. *Cowp.*768. *Doug.*184.]

III. The only inquiry remaining is; whether the proof supports the declaration. The variance at most, is merely in the middle-letter of the defendant’s name, which is never considered as a defect., But if.the defendant intended to rely’upon this as her defence, she should have pleaded the matter in abatement. The person of the defendant is identified in the letters of administration as the widow of Frederick Louis Vultee, and if she be not. the person meant, let that be shown by a proper plea. ' This *389is no defect or variance in point of fact, and if it were, it could not be taken advantage of in this manner.

*Per Curiam.*

This is an action of debt brought against the defendant as the assignee of a lease, to recover rent in arrear. From the facts disclosed by the case, and from the averments in the declaration, it may be fairly inferred, that the rent for which the action is brought., has accrued since the death of the original lessee; that the defendant has since that time entered upon and enjoyed a part of the demised premises, and that the lease on which the action is founded, expired before the commencement of this suit,.

The first objection made to the plaintiff’s right of recovery is, that the action of debt will not lie on an expired lease. But this is a mistake. At common law the lease *must*expire before an action can be brought, and then *debt*is the proper action. We have looked into the case cited by the defendant’s counsel from [Cro *Eliz. p.*264.] and are satisfied that its import has been mistaken. The termination of the lease can neither destroy the lessor’s right to the rent, nor take away his remedy to recover it. And there is a case reported in the same book, *(Brown v.*Hare, *Cro. Eliz.*633.) where it was expressly decided, that debt upon an expired lease would lie, and the other authorities cited on the argument fully support the same position. [1 *Lev. 25.*1 *Saund.*233. *a.*1. *Woodfall,*323. 2 Lev. 231.]

The objection that the declaration does not show the *manner*in which the defendant became assignee, is equally unfounded. She may be described as assignee in general terms, and such description will be sufficient to charge her for the estate which actually came into her possession; “ for the plaintiff is a stranger to the defendants’ title, and cannot set it out particularly.” [1 *Chit.*353. *Folliard v. Wallace,*2 *John. R.*402. 1 *Saund. note*1. 1 *Salk.*316.]

But the verdict in this case has been rendered for the ■ entire rent of the whole premises for the two quarters, which is a greater amount than that for which the defendant is liable; and there must, therefore, be a new trial, to correct the amount of the recovery. The defendant entered upon a *part of*the premises only, *390and she cannot be charged for a greater estate than that which she enjoyed. She is sued as assignee generally, and like every other assignee, is liable for the estate which came into her hands. In all cases where there is no privity of contract, the" rent may be apportioned, and the law leans towards this course, as most consistent with the ends of justice.

If the defendant had been sued as administratrix with assets, then the rent could not have been apportioned, for the administratrix would have been bound to fulfil the contract of the intestate. But here she is made answerable for the estate which she has *herself enjoyed,*and the judgment goes against her own property. As she is liable merely through her privity of estate, she of course cannot be made answerable for what she never possessed.

There must therefore be a new trial, to ascertain what the value of the rent of that portion of the premises occupied by the defendant, actually was, in relation to the other part in the possession of McGlade, the other tenant.

As in the view we take of the subject, the defendant is liable, in her own capaóity, for the rent of the premises enjoyed by her, the objection, that the proof does, not support the declaration, in consequence of a misdescription in the defendant’s name, has no application, and need not be considered.

*New trial*granted.

[Emmet and Selden, *Att'ys for the plffs.*Muloch, *Att'y for the deft.]*