Rent service is incident to the reversion. If a lessor seized in fee dies, the rent accrued prior to his death (being, as Lord Coke expresses it, “ fruit fallen,” that is, having become a debt in gross and merely personal to the lessor) devolves upon his personal representative. But the rent which is not accrued at his death passes with the-reversion to the heir or devisee.
If a lessor accepts a “ fine,” (that is, an amount of money in hand,) and reserves an annual rent of a pepper-corn, the-reversion passes to the heir or devisee with this nominal rent and fealty, which, as now understood, simply has the-effect of preventing the lessee from disputing the title.
So if the lessor takes the notes of the lessee securing the-payment of certain sums annually, in satisfaction of the rent *220and dies, all of these notes belong to his personal representative.
The heir or devisee takes the reversion with no other service save fealty, because by taking the notes the lessor severs the rent from the reversion and' makes it' a debt in gross, being the same in legal effect as if he had accepted a “fine.”
In our case the lease was for four years, and the question is, by the true construction of the covenant, is it simply evidence of an agreement to pay an annual rent? Or is it a severance of the rent from the estate so as to make it a personal debt, (“fruit fallen,”) one from year to year? By a perusal of the covenant we can see nothing to take it out of the ordinary case of a covenant to pay rent, which passes with the reversion as an incident thereto.
There is ño fine, no separate security taken, having the effect of detaching the. rent from the estate, so as to let the land pass to the devisees subject to the term of years, but stripped of the rent which would otherwise have passed as an incident of the reversion, in lieu of the immediate possession of the land.
The amount of the rent could not, according to the terms of this lease, have been fixed before hand with certainty, for it depended upon the number and location of the trees brought under cultivation. This circumstance raises an inference against an intention to detach the rent from the estate.
It follows that the plaintiff was only entitled to recover the rent accrued at the death of his testator — the defendant was not called upon to prove that he had in fact paid the rent accruing after the death of the lessors to the devisees.
But as he offered to do so his Honor’s refusing to admit the evidence shows that he was in error as to the extent of the plaintiff’s cause of action, and the result was, he obtained a verdict and judgment for a much larger amount than that to which he was entitled. There is error.
Peb Cubiam. Venire de novo.