Opinion
July Term, 1808.
1. Act of 1715, ch. 48, sec. 9. barring the claims of creditors against the estates of deceased persons.
2. A demised lands to B, and B covenanted in the indenture of demise to pay $50 annually for the rent. The demise was made in 1790, and B died in 1794, having had possession of the premises until his death. The demise expired in 1803, no rent having been paid. A sued the executor of B upon the covenant of the indenture for the rents; the suit was brought in 1804, and the executor pleaded the act of 1715, ch. 48, in bar. Plea sustained; for the defendants are not sued upon their own possession, but upon the possession of their testator, upon his pernancy of the profits of the demised premises, and not their own, and they must answer as his representatives. The act bars after seven years from the death of the testator, although great part of the rent did not become due until more than seven years after his death; no notice of the debt having been given to the executor within the seven years.
THIS was an action of covenant, in which the jury found a special verdict, setting forth that Mary Blount, widow, being seized and possessed of an estate for life in certain lands in Pasquotank County, with Sylvester Hosmer, on 23 December, 1790, executed a certain indenture, whereby the said Mary "demised, leased, and to farm let to the said Sylvester, his executors, administrators and assigns, the said lands with the appurtenances, to have and to hold the said lands with the appurtenances to the said Sylvester, his executors, administrators and assigns, from 1 January then next following, for and during the term of the natural life of the said Mary, yielding and paying the sum of $50 annually, the first payment to be made on 1 January, 1792." By virtue of this indenture, Hosmer entered and took possession of the premises, and continued in possession thereof until his death, in March, 1794. Hosmer made a will and appointed the defendants his executors, who proved the will and undertook the execution thereof. Hosmer (203) left sufficient assets, which came to the lands of his executors, to pay the rents reserved in the said indenture of demise, and all other just debts and demands against his estate. In the beginning of 1797 Mary Blount intermarried with Henry Neil, and lived with him until his death, in October, 1802, when said Henry died, leaving said Mary him surviving. Henry Neil did not sat any time during his marriage with said Mary demand or receive any part of the rent of the demised premises; that the said rent remained unpaid, and with the rents which accrued after his death, remained unpaid at the time of bringing this suit. In 1803 Mary Neil, the widow, made her will, appointed the plaintiff executor thereof, and shortly afterwards died. The writ in this case was sued out on 22 September, 1804, and the defendants pleaded "the general issue, covenants not broken, plene administravit, and the act of 1715."
Slade for plaintiff.
Browne for defendants.
From Chowan.
The case was sent to this Court for the opinion of the judges.
The act of 1715, ch. 48, sec. 9, bars the plaintiff's claim. The principles of this decision being stated at large in the case of McLellan v. Hill, decided by this Court at June Term, 1804, it is unnecessary to repeat them here. Let judgment be entered for the defendants.
(207)