Martin, Bradley, & Co. v. Searcy , 3 Stew. 50 ( 1830 )

By JUDGE WHITE. The

question plainly raised by (he state of the record is, whether, when the tenant has obtained the fee by absolute conveyance, before the termination of the lease, it does not operate an extinguishment of the rent for the remainder of the term? If a lease be made reserving rent, and the lessor grant the reversion to another, the rent passes to the grantee, although no mention be made of it in the deed, rent being incident to the reversion.^b Then according to this principle, when Taylor conveyed the land to Searcy in fee, making n0 reserv-aiion 0f rent, he conveyed the latter as incident to the former, and Searcy was the legal owner of both the fee-simple and the rent In this state of things, had the tenant, paid the rent subsequently accruing to Taylor, he would have been still liable to Searcy, unless the payment had been made without notice of the conveyance. In that event, he would have been protected by the proviso of our statute, made to do away the old doctrine of attornment., an¿ which is almost an exact copy of that of 4 Anne, ^c But S.earcy, before the expiration of the year, conveyed the fee .to the tenants. They then, by the effect of the same principle, became entitled to the rent for the remainder, of the term. And unless we could suppose the absurdity of a man. being bound to himself, that portion of the' rent was, by this last conveyance, completely extinguished. ^d This is certainly the general- doctrine, nor do we gee j^g application to the case before us, is rendered at all doubtful, by the apprehension of injury accruing from its establishment, to persons who might trade for notes giv.en for rent without, notice of the conveyance of .the fee to the tenant. In the first place, the instrument here sued on bore on its own face evidence of its being a lease, which was sufficient to put assignees on the inquiry.; and again, Searcy was the holder of this instrument at the very time he made the conveyance, without any reservation as to the residue of the rent, and being chargeable with, a knowledge of the legal effect of his own acts' upon his. own rights, should not complain. Then, whatever may be the situation of the assignee of a note giv-smibr rent, without, notice, whidh it will be time enough to determine when the question arises, the defendant in error occupies a different situation, and is clearly to the operation of the ordinary principle. The judgment must be reversed, and if desired, the cause may here-manded. Reversed and remanded. ■

Judge Taylor, had been of counsel below and did not sit.

b . Noy's Max 14, Pa 18 Co. Lit. 317 a.

c Laws of Ala. 238.

d Gilbert on Rents 183-4.