2.
Apportionment will here be considered only in relation to contracts, by
talking a view, 1, of such as are purely personal and, 2, of such as
relate to the realty.
3.
– 1. When a Purely personal contract is entire and not divisible in its
nature, it is manifest it cannot be apportioned; as when the subject of
the contract is but one thing, and there is but one creditor and one
debtor, neither can apportion the obligation without the consent of the
other. In such case the creditor cannot force his debtor to pay him a
part of his debt only, and leave the other part unpaid, nor can the
debtor compel his creditor to receive a part only of what is due to him
on account of his claim. Nor can the assignee of a part sustain an
action for such part. 5 N. S. 192.
4.
When there is a special contract between the parties, in general no
compensation can be received unless the whole contract has been actually
fulfilled. 4 Greenl. 454; 2 Pick. R. 267; 10 Pick. R. 209; 4 Pick. R.
103; 4 M'Cord, R. 26, 246; 6 Verm. R. 35. The subject of the contract
being a complex event, constituted by the performance of various acts,
the imperfect completion of the event, by the performance of only some
of those acts, cannot, by virtue of that contract, of which it is not
the subject, afford a title to the whole, or any part of the stipulated
benefit. See 1 Swanst. C. 338, n. and the cases there cited; Story,
Bailm. 441; Chit. Contr. 168; 3 Watts, 331; 2 Mass. 147, 436; 3 Hen.
& Munf. 407; 2 John. Cas. 17; 13 John. R. 365; 11 Wend. 257; 7
Cowen, 184; 8 Cowen, 84; 2 Pick. 332. See generally on the subject of
the apportionment, of personal obligations, 16 Vin. Ab. 138; 22 Vin. Ab.
13; Stark. Ev. part 4, p. 1622; Com. Dig. Chancery, 2 E and 4 N 5; 3
Chit. Com. Law 129; Newl. Contr. 159; Long on Sales, 108. And for the
doctrine of the civil law, see Dumoulin, de dividuo et individuo, part
2, n. 6, 7; Toull. Dr. Civ. Fr. liv. 3, tit 3, c. 4, n. 750, et seq.
5.
– 2. With regard to rents, the law is different. Rents may in general
be apportioned, and this may take place in several ways; first, by the
act of the landlord or reversioner alone, and secondly, by virtue of the
statute of 11 Geo. II., c. 19, s. 15, or by statutes in the several
states in which its principles have been embodied.
6.
– 1. When there is a subsisting obligation on the part of the tenant to
pay a certain reat, the reversioner may sell his estate in different
parts, to as many persons as he may deem proper, and the lessee or
tenant will be bound to pay to each a proportion of the rent. 3 Watts,
404; 3 Kent Com. 470, 3d. ed.; Co. Litt. 158 a; Gilb. on Rents, 173; 7
Car. 23; 13 Co. 57 Cro. Eliz. 637, 651; Archb. L. &. T. 172 5 B.
& A.876; 6 Halst. 262. It is usual for the owners of the reversion
to agree among themselves as to the amount which each is to receive; but
when there is no agreement, the rent will be apportioned by the jury. 3
Kent, Com. 470; 1 Bouv. Inst. n. 697.
7.
– 2. Rent may be apportioned as to time by virtue of the stat. 11 Geo.
H., C. 19, s. 15, by which it is provided that the rent due by a tenant
for life, who dies during the currency of a quarter, of a year, or other
division of time at which the rent was made payable, shall be
apportioned to the day of his death. In Delaware, Missouri, New Jersey,
and New York, it is provided by statutes, that if the tenant for life,
lessor, die on the rent day, his executors may recover the whole rent;
if before, a proportional part. In Delaware, Kentucky, Missouri, and New
York, when one is entitled to rents, depending on the life of another,
he may recover them notwithstanding the death of the latter. In
Delaware, Kentucky, Missouri, and Virginia, it is specially provided,
that the hushand, after the death of his wife, may recover the rents of
her lands. 1 Hill. Ab. c. 16, 50. In Kentucky, the rent is to be
apportioned when the lease is determined upon any contingency.
8.
When the tenant is deprived of the land, as by eviction, by title
paramount, or by quitting the premises with the landlord's consent, in
the absence of any agreement to the contrary, his obligation to pay rent
ceases, as regards the current quarter or half year, or other day of
payment, as the case may be. But rent which is due may be recovered.
Gilb. on Rents, 145; 3 Kent, Comm. 376; 4 Wend. 423; 8 Cowen, 727 1 Har.
& Gill, 308; 11 Mass. 493. See 4 Cruise's Dig. 206; 3 Call's R.
268; 4 M'Cord 447; 1 Bailey's R. 469; 2 Bouv. Inst. n. 1675, et seq.
No comments:
Write comments