The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1876-01-19
Cases Decided Monday, Jan. II
Blood worth w.. w. r.. stephens
Admit nistPatriN.
Opinion of the Court by S1MRALL, j.

Opinion of the Court by SIMRALL, j.
This was an attachment for rent. brought
by the Administrators of Wiley III. Steph-
ems deceased, against the plaintiff in error.
The latter rented ninetv-niuc acres of land
for the year 1872, at $500 per acre. payable
at the end of the year. nv the contract the
lessor was 10 keep the fences in repair. The
lessor died before the rent became due. To
the aVOwry the lessee set up 4 claim for
damages to MS crop arising out OF the les
sor's failure to perform his covenant 10 re-
pair the fencing. Evidence WAS offered TO
show the bad condition of the fencing and
damage done the crop by cattle, which
had entered the premises. This was eXclud-
ed by the Court.
The Court instructed the jury that the
Administrators OF the lessor could maintain
the action, although the rent fell due after
the lessons death. And refused an instruc-
tlon for the defendant announcing the con-
verse OF this proposition that the rent fall
ing due after the death OF the lessor descend
ed, to his heirs, and did not go TO the per-
sonaI representative as assets.
The action al the Court on these questions
assigned for error. He{d,
|. IL is not well settled that tenant need
not sue in a cross action for damages re-
Sultin9 from breach OF lessons covenants in
the contract of lease but may recoup such
damages in the action tor the rent. This
right of rccoupment arises where the cross
demand grows out OF the same contract on
transaction. Where the contract contains
stipulatiOns the defendant may RELY uDoD "A
breach OF IA covenant in his favor, and the
damages aocruing there1rom AS total or
partial satisfaction of the demand arising
out OF another part of the same contract
the subject OF the plaintiffs suit.
II. The principle that Tacanpment is not
allowable in an action OF repevin, if correct
does not apply to defence made to the
avowry of the lessor, showing that the rent
claimed or any part of it is not legally due.
Ill. "Rent is a compensation for the
possession of = corporal inherit lnce." and
Il profit issuing out of land in return for It's
use. 1t is Incident to the rpvcrSion at
iaches itself - the ownership aha follows 4
transfer of the premises" Rent not az
crueG follows the land into the hands of u
purchaser.
". At common law ifthe lessor dies be.
fore the rent fails due, the rent will 60 to
the heirs as an incident to the rev.rsiAn
the rule in this State
y. BY statutes of 4th and 5th William,
~ England, rent service and rent charge
which are determined by the death Of per
son between rent days are colIectable pro
rata upon principle of apportio:ment.
But in this State there is no such statute
VI. Sections ll3l, aud 1920 code 1870
do not change the common law rule which
passed the rent with the inheritance to the
heirs where it was re, due at the death of
the ancestor.
VII. Section 1886. Code 1S7I) gives the
right of action to the personal representa-
tives for rent due and Unpaid ut the time of
the lessons dea,h; but this leayes untouch-
ed the right of the heirs 80 rents not due at
the time of his death.
VIZ. Section 1859, Code 1871 applies
exclusively to a tenant Tor life who has de-
missed premises and gives to his executor
the right to recover u proportion of the
rent which accrued before the tiIae of his
death. this statute applied to this case
nothing would be due the administrators
for the tenant has paid more rent proper
lionably than arose up to the lessons death
Reversed and rem4Hded.