Winslow v. Rand , 29 Me. 362 ( 1849 )

Shepley, C. J.

The bill of exceptions states, that the defendant and two other persons, as trustees of the Exchange bank, received a conveyance of “a store and share in Union wharf in Portland.” “ On the first day of December, 1847, said store and share were sold and conveyed by said trustees to the plaintiff. On the first of January, 1848, a dividend of $60,25 was declared upon the share aforesaid, by the proprietors of said wharf, and said dividend was paid by the treasurer of said wharf to the defendant, as trustee of the stockholders of the Exchange bank, on January 25, 1848, the defendant giving a receipt therefor as such trustee.” The case does not state, whether the proprietors had been organized as a body corporate under the provisions of the statute, or whether periodical dividends were made; or in what manner the income of rents were collected or accrued. It does not appear, that the earnings of that year or any part of them, had, before the conveyance was made to the plaintiff, been in any manner disconnected with the estate, as rent in arrear or as money collected and set apart as personal property.

When a conveyance of ah estate is made, all the rents and income, which have accumulated and which have not been so disconnected with it as to become personal property, will pass by the conveyance. By the common law, the rent of an estate under lease not then payable, is conveyed by a conveyance of the reversion. The assignee or grantee of the reversion may maintain an action of debt against the lessee, to recover such rent, founded upon the privity of estate, and not upon the privity of contract.

The same rule in substance, prevails with respect to sales of public stocks. When dividends are made at certain known periods, and a sale is made between those times, the interest or income, which has accrued since the last dividend was made, passes by a sale of the stock as a part of it. While the amount of rent which accrues from one pay-day to another, or of dividend or interest from one time to another, and which is in arrear, or which has been declared and ordered to be paid, before a conveyance, does not pass by conveyance of the estate or stock. There is in these cases no apportionment. Thursby v. Plant, 1 Saund. 241, note 6; Birch v. Wright, 1 T. R. 378; Clun’s case, 10 Coke, 128; State v. Waldo Bank, 20 Maine, 475; Burden v. Thayer, 3 Metc. 76.

It does not appear, that the earnings of that year, or any portion of them, had been in any manner separated from the estate, by being in arrear as rent or by any dividend or by their being collected and sot apart as personal property. The accruing income must therefore be considered to have been conveyed with the estate.

The defendant having received the money of the plaintiff, cannot avoid the responsibility imposed upon him by law, to account for it by showing, that he received it in his capacity or under colour of being a trustee for others, who were not entitled to it. Exceptions overruled.