This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Rent may be apportioned as regards the amount thereof, that is, a person may become entitled to, or liable for, a portion only of the rent originally reserved.12 Either one of three different cases of such apportionment may arise, that is: (1) a right to a distinct portion of the rent, and to such portion only, may be vested in each of two or more persons; (2) a liability for a
7. Post, Sec. 413, note 39-41.
8. See Pollock, Contracts (Wil-liston's Ed.) 813.
9. Donellan v. Read, 3 Barn.
6 Adol. 899; Hoby v. Roebuck,
7 Taunt. 157; Coit v. Braunsdorf,
32 N. Y. Super. Ct. (2 Sweeny) 74.
10. Post, Sec. 431.
11. See Doe d. Monck v. Geekie, 5 Q. B. 841.
12. As to apportionment of distinct portion of the rent, and for such portion only, may be imposed on one person, another being liable for the balance; or (3) the rent may be extinguished as to a portion, and a portion only.
An apportionment of the character first referred to, resulting from the vesting of the right to a distinct portion of the rent in each of two or more persons, occurs when the landlord grants the reversion in part of the land, retaining the balance,13 and also when he transfers the reversion in different parts of the land to different persons, not retaining any part thereof.14 And the case is the same when he severs the reversion by devise.15 An apportionment also takes place if the reversion is severed by act of the law, as when, on the death of the landlord, it passes to two or more heirs,1'1 or when it passes to the heir, and, as to one-third, to the widow.17 In the case of such a severance of the reversion, the tenant is entitled to demand that the jury determine, in an action for the rent, the respective values of the different portions of the land, and the consequent extent of his obligation to each owner of a part of the reversion.18
Not only may the rent be apportioned by a severance of the reversion, but it may also be apportioned rent on lease of land and chattels, see mite, Sec. 405, notes 34-40.
13. Co. Litt. 148a; 2 Co. Inst. 504; West v. Lassells, Cro. Eliz. 851; Bliss v. Collins, 5 Barn. & Aid. 876; Worthington v. Cooke, 56 Md. 51; Biddler v. Hussman, 23 Mo. 597; Grubbie v. Toms, 70 N. J. Law 522, 57 Atl. 144. Id. 71 N. J. Law, 338, 59 Atl. 1117: Linton v. Hart, 25 Pa. 193, 64 Am. Dec. 691.
14. Gilbert, Rents, 173; Ehr-man v. .Mayer, 57 Md. 612, 40 Am. Rep. 448; Crosby v. Loop, 13 111. 625, 14 111. 320; Reed v. Ward, by the landlord without reference to the reversion, this being either retained by him or transferred to another, as when one who has demised land for a term of years, reserving rent, grants to each of several persons, or to one person, a portion of the rent.19 So tenants in common of land, after making a lease thereof, reserving one entire rent, may, without partitioning the reversion, apportion the rent between them.20
22 Pa. 144.
15 Ewer v. Moyle, Cro. Eliz. 771; Hare v. Proudfoot. 6 U. C. Q. B. (O. S.) 617.
16. Leitch v. Boyington, 84 111. 179, 25 Am. Rep. 442; Cole v. Patterson, 25 Wend. (N. Y.) 456; Bank of Pennsylvania v. Wise, 3 Watts (Pa.) 404.
17. 1 Rolle Abr. 237, pl. 5.
18. Bac. Abr. Rent (M. 3) ; Fish v. Campion, 1 Rolle, Abr. 237, pl. 1; Bliss v. Collins, 5 Barn. & Ald. 876; Hare v. Proudfoot, 6 U. C. Q. B. (O. S.) 617; Riddle v. Huss, 23 Mo. 597.
- On severance of leasehold. In case the leasehold interest in different parts of the premises becomes vested in different persons, each part, or the owner of each part, is ordinarily liable only for a proportioned part of the rent.21 And the original lessee remains liable to the landlord for the whole rent, under his covenant to pay rent.22
A tenant cannot, without the consent of the owner of the rent, by any disposition of the land or of a part thereof, apportion the rent so as to affect the right of such owner to collect the whole rent which may at any time fall due, by means of a proceeding against the land. Accordingly, if the tenant of part of the leased premises is in default, the landlord may distrain upon another part,23 and he may presumably enforce a condition of forfeiture against such other part as well as against that part which belongs to the tenant in default.
------Partial extinction or suspension of rent. Cases of the apportionment of the rent by reason of the extinction or suspension of a portion of the rent occur upon the termination of the tenant's estate as regards a part of the premises. Thus, if the tenant of the whole premises leased surrenders his leasehold interest in a part thereof, or his leasehold is otherwise in part merged in the reversion, the rent is apportioned, it being extinguished in an amount proportioned to the value of the portion as to which tbe lease is no longer outstanding, while still existent as regards the balance.24 The rent is also apportioned in case the landlord re-enters upon a part only of the land for breach of a condition of the lease,25 and in case the tenant is evicted from part of the land by title paramount, the landlord being thereafter entitled to such portion only of the rent as is proportioned to the part of the leased premises which the tenant still holds under him.26 Occasionally the rent is apportioned by reason of the lessee's inability to obtain possession of the whole of the demised premises.27
19. Ards v. Watkins, Cro. Eliz. 651; Bliss v. Collins, 5 Barn. & Ad. 876, 882; Rivis v. Watson. 5 Mees. & W. 255.
20. Powis v. Smith, 5 Barn. & Ald. 850; Woolsey v. Lasher. 3? App. Div. 108, 54 N. Y. Supp. 737.
21. Babcock v. Scoville, 56 111. 461; St. Louis Public Schools v. Boatmen's Insurance & Trust Co., 5 Mo. App. 91; Daniels v. Richardson, 39 Mass. (22 Pick.) 565; Hogg v. Reynolds, 61 Neb. 758, 87 Am. St. Rep. 522, 86 N. W. 479; Van Rennselaer v. Bradley, 3 Denio (N. Y.) 135, 45 Am. Dec. 451.
22. Ante, Sec. 407, note 59.
23. Curtis v. Spitty, 1 Bing. N. Cas. 756; Jackson v. Wychoff, 5 Wend. (N. Y.) 53.
- In action on covenant for rent. There is a dictum in an English case,28 that "in covenant as between lessor and lessee, where the action is personal, and upon a mere privity of contract, and on that account transitory as any other personal contract is, tip-rent is not apportionable." This dictum, it seems clear,
24. Litt. Sec. 222; Co. Litt. 148a; Smith v. Malings, Cro. Jac. 160; Higgins v. California Petroleum & Asphalt Co., 109 Cal. 304, 41 Pac. 1087; Leitch v. Boyington, 84 111. 179, 34 L. R. A. 55, 57 Am. St. Rep. 396; Ehrman v. Mayer, 57 Md. 612, 40 Am. Rep. 448; Nellis v. Lathrop, 22 Wend. (N. Y.) 121, 34 Am. Dec. 285; Van Rensselaer v. Gifforrl, 24 Barb. (N. Y.) 349.
25. Walker's Case, 3 Coke 22; Collins v. Harding, 13 Coke 58.
26. Halligan v. Wade, 21 111.
470, 74 Am. Dec. 108; Fillebrown v. Hoar, 124 Mass. 580; Cheairs v Coats, 77 Miss. 846, 50 L. R. A. Ill, 78 Am. St. Rep. 546, 28 So. 728; Lawrence v. French, 25 Wend. (X. Y.) 445; Christopher v. Austin, 11 N. Y. 216; Poston v. Jones, 37 N. Car. (2 Ired. Bq.) 350; Tunis v. Grandy, 22 Gratt. (Va.) 109, Co. Litt. 148b.
27. Ante, Sec. 413, notes 43-59.
28. Stevenson v. Lambard, 2 East 575, per Lord Ellenborough, C. J.
2 R. P. - 19 is not correct as applied to an action upon the covenant for rent, by a lessor who has disposed of the reversion in part of the leased premises, he being entitled to recover a proportionate part of the rent and no more.29 Whether it is correct as applied to a case in which the rent is in part extinguished or suspended, as upon a surrender or eviction by title paramount, it is difficult to say. The covenant might frequently be construed as one to pay the rent that may become due, rather than to pay the amount reserved, in which case the liability under the covenant would be the same as in an action of debt for rent, and a loss of the possession of part of the premises would be a ground for a pro tanto reduction of liability in an action on the covenant, as in an action of debt.30 In so far as the covenant is not 'susceptible of this construction, it is somewhat difficult to find a satisfactory ground on which to base a partial reduction of liability in case of the partial loss of possession by the tenant.31 The courts might possibly apply the somewhat indefinite doctrine of failure of consideration in this connection.
- Of rent charge. A rent charge is not apportionable to the same extent as a rent service. Rent charges were never favored by the courts as were rents service, which were regarded as a part of the feudal constitution of the realm.32 Consequently, if the owner of the rent acquires a part of the land from which it issues, by voluntary conveyance, no apportionment occurs, and the whole rent is extinguished.33 It is apportioned, however, if the owner of the rent releases a part thereof,34 or if he acquires a part of the land by descent.35 And even on a voluntary conveyance to him of part of the land an apportionment occurs if it is so agreed between the parties to the conveyance, this in effect creating a new rent charge,36 Upon a transfer of a portion of the rent to another an apportionment occurs.37
29. Swansea v. Thomas, 10 Q. B. Div. 48; Worthington v. Cooke, 58 .Md. 51; Linton v. Hart, 25 p. 193, 64 Am. Dec. 691.
30. See Baynton v. Morgan, 22 Q. B. Div. 81, per Fry, J.
31. In Shuttleworth v. Shaw, 6 Upper Can. Q. B. 539, it was decided that in an action of covenant for rent there could be no apportionment on account of the partial eviction of the tenant. In
Poston v. Jones, 37 N. C. (2 Ired. Eq.) 350, 38 Am. Dec. 683, it is at least suggested that in such case a court of equity would intervene in order to compel an apportionment.
32. See Gilbert, Rents, 152. A rent seek, likewise, has been regarded as not apportionable by the act of a party. Vin. Abr., Apportionment (A) 2; Id., Rent (Ga.) 12.