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Spicer v. Spicer

5 Del. 106 5 Harr. 106 Court Del. Super. Ct. English

Contents

Majority

p. 106
THEOPHILUS SPICER, appellant vs. JANE B. SPICER, respondent, plaintiff below.

Headnote

Where land is assigned to the wife upon a decree of divorce, she is entitled to the rents from the confirmation of the sale.
Appeal from the judgment of a justice of the peace.
Theophilus Spicer was the tenant of Lewis Spicer. Jane B. Spicer was the wife of Lewis Spicer, and was divorced hy this court, and the land occupied by appellant assigned to the wife hy the judgment in divorce. The defendant refused to pay her the rent; and she brought the action below against him for it.
The decree of divorce (April 13, 1844,) ordered one-third of the husband’s land to be laid off by commissioners, to the wife, to hold for her life. The assignment was made the 21st of October, 1844, and confirmed the 26th of October, 1844.
William W. Morgan,—Described the property laid off to Mrs. Spicer, under the decree of divorce. Theophilus Spicer was in possession in 1844, as a tenant of Lewis Spicer; the farm was good for one hundred hundred and fifty, to two hundred bushels of corn.
Mr. Cullen
claimed that Mrs. Spicer was entitled to the land and emblements from the date of the order laying it off, under the decree of divorce; by relation; after confirmation: that the pendency of the libel for divorce was notice to all the world; and the tenant was bound to take notice. [ 3 Harr. 291 ; 3 Johns. 222 ; Arch. L. & T. 110, 150; 4 Kent’s Com. 467; 1 Story’s Eq. % 405.] '
Mr. Houston
said that the wife had no claim to the rents until the proceedings of the commissioners were confirmed. Rent due before transfer of the reversion does not go with it. Rent by the common law and usage in Sussex, is due when the grain is ripe and deliverable, and is due on the premises. [ 3 Harr. Rep. 82 , 499.]
Cullen.
The rent is payable to the landlord at a certain time, not dependent on the weather. Rent of crops unsevered passes to the vendee or alienee of the reverson. [4 Kent’s Com. 467.]

said Mrs. Spicer was entitled from the confirmation of the commissioners’ return. If the rent was payable after the 26th of October, 1844, she was entitled to recover. The rent was not due until ripe, severed and delivered. Thb tenant is bound to gather the corn and divide it, with notice to the landlord.

Verdict for respondent.