She retained the right to recover the rents and damages which had accrued when the deed was made, but those which thereafter accrued belonged, under the law of North Carolina, to Arbogast, as the person then owning the land. Kornegay v. Collier, 65 N.C. 69; Bullard v. Johnson, 65 N.C. 436; Wilcoxon v. Donelly, 90 N.C. 245. See, also, Seymour v. Cummins, 119 Ind. 148, 21 N.E. 549, 5 L.R.A. 126; Glidden v. Second Avenue Investment Co., 125 Minn. 471, 147 N.W. 658, L.R.A. 1915C, 190. It follows that so much of the decree of the court as awarded to the plaintiff cancellation of the lease, possession of the property, and damages and rents accruing after the transfer, was erroneous.
Purchaser of the land acquires no title to the past due rents. Mixon v. Coffield, 24 N.C. 301; Kornegay v. Collier, 65 N.C. 69; Rogers v. McKenzie, 65 N.C. 218; Bullard v. Johnson, 65 N.C. 436; Lancashire v. Mason, 75 N.C. 455; Jennings v. Shannon, 200 N.C. 1, 156 S.E. 89; Perkins v. Langdon, 231 N.C. 386, 57 S.E.2d 407; Four-G Corp. v. Ruta, 138 A.2d 18; Boteler v. Leber, 164 A. 572; Notes, Ann. Cas. 1912B 398: "Right of Purchaser of Leased Land at Judicial Sale with Respect to Rents"; Ann. Cas. 1916D 192: "Persons to Whom Rent is Payable in Absence of Governing Statute, in Case of Sale, Mortgage or Other Grant of Reversion"; 32 Am. Jur. 104-5; 30A Am.Jur. 998; 50 C.J.S. 662. When title passes, lessee ceases to hold under the grantor.
Moreover, rents due under a lease follows the reversion. G.S. 42-2; Kornegay v. Collier, 65 N.C. 69; Bullard v. Johnson, 65 N.C. 436; Holly v. Holly, 94 N.C. 670. It does not appear from the plaintiffs' pleadings whether the plaintiffs were in the actual possession of the premises in question at the time the defendant sold the warehouses, or whether the possession had been released to the defendant for the interim period between seasons.
While rents accrued are choses in action, the assignment of which does not come within the purview of the statute requiring registration; rents accruing are incorporeal hereditaments, Schmid v. Baum's Home of Flowers, 162 Tenn. 439, 75 A.L.R., 261; Winnisimmet Trust, Inc., v. Libby, 232 Mass. 491, 122 N.E. 575, interests in lands, the assignment of which comes clearly within the provision of the statute, and is in truth a quasi-lease, and since for a period of more than three years is governed by C. S., 3309, and is required to be registered to pass any property as against purchasers for valuable consideration. That rents accruing are incorporeal hereditaments and are incident to and connected with an estate in land has been repeatedly held by this Court. Kornegay v. Collier, 65 N.C. 69; Wilcoxon v. Donelly, 90 N.C. 245; Mercer v. Bullock, 191 N.C. 216, and cases there cited. The judgment of the Superior Court is
Rent reserved by a landlord is rent service and passes to the assignee of the reversion. Kornegay v. Collier, 65 N.C. 69; Rogers v. McKenzie, ibid., 218; Bullard v. Johnson, ibid., 436. In Wilcoxon v. Donelly, 90 N.C. 245, it is said that rents accruing under a contract of lease are incident to and connected with the estate in reversion, and, when the estate is transferred, follow the assignment to the bargainee unless they are at the time overdue or are secured by bond or note, which breaks the connection and separates the obligation from the estate.
It is established by the decisions in this and other jurisdictions that, in the absence of a statute governing the matter, when mortgaged lands are in the possession of a tenant, and a foreclosure is had during the term of the lease, nothing else appearing, the mortgagor is entitled to collect all the rent that is due at the time of sale, and the purchaser is entitled to collect all that subsequently falls due. Page v. Lashley, 15 Ind. 152. The title to the rent is dependent on that of the property, hence a sale of the demised premises passes title to the accruing rent and gives the purchaser the right to collect the rent falling due after the purchase. Mixon v. Coffield, 24 N.C. 301; Lewis v. Wilkins, 62 N.C. 307; Kornegay v. Collier, 65 N.C. 69; Rogers v. McKenzie, ibid., 218; Lancashire v. Mason, 75 N.C. 459; Holly v. Holly, 94 N.C. 674; University v. Borden, 132 N.C. p. 486; Dixon v. Nicolls, 39 Ill. 372; Chisholm v. Spullock, 87 Ga. 665. Sections 2345 and 2346 of the Consolidated Statutes, relating to the apportionment of rent where the lease or right to payment is terminated by death or other uncertain event, have no application to the facts of the instant case.
But the said defendant R. T. Gaitley now contends that as he held a deed for the land and was the owner thereof at the time the 1919 rent fell due, he is no longer liable to the plaintiff therefor, but that said rent passed to him under his deed, as owner of the property. For this position he relies upon the following decisions: Mixon v. Coffield, 24 N.C. 301; Lewis v. Wilkins, 62 N.C. 307; Kornegay v. Oliver, 65 N.C. 69; Rogers v. McKenzie, 65 N.C. 218; Lancashire v. Mason, 75 N.C. 459; Holly v. Holly, 94 N.C. 674. We do no think this position can avail the defendant in the face of the jury's finding that he had agreed otherwise, and that such constituted a part of the consideration given for his option and deed. It is well settled that a vendor, in a suit for the purchase price of land, may prove by parol the amount thereof, the terms of payment and its nonpayment, notwithstanding the deed may contain a recital or acknowledgment contrary to the real transaction between the parties.
In such case, it is settled, that the rents that come due after the death of the testator, follow the reversion to the devisee. Kornegay v. Collier, 65 N.C. 69; Rogers v. McKenzie, Ibid., 218; Nixon v. Coffield, 24 N.C. 301. Let this opinion be certified to the Superior Court. It is so ordered.
At the last Term of this Court, it was decided after much argument, that rent service was incident to the reversion, and that the rent (439) not accrued passed to the assignee. Kornegay v. Collins, 65 N.C. 69. Before that case, it appears to have been a question of doubt, among the members of the profession, whether the rent passed to the assignee of the reversion, or belonged to the lessor as a personal chose in action. In this case the action had been commenced in the name of the lessor; and after that decision the motion to amend was made.
Venire de novo. Cited: Kornegay v. Collier, 65 N.C. 70; Sc, 81 N.C. 164; Holly v. Holly, 94 N.C. 674; University v. Barden, 132 N.C. 486; Timber Co. v. Bryan, 171 N.C. 265; Pate v. Gaitley, 183 N.C. 263; Mercer v. Bullock, 191 N.C. 217; Jennings v. Shannon, 200 N.C. 3; Trust Co. v. Dodson, 260 N.C. 36. (221)