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Watson v. Penn.

61 Tex. 213; Stevenson v. Hancock, 72 Mo. 612; Westmoreland v. Foster, 60 Ala. 448.

An exception to this rule occurs when the lessor receives a note, or other obligation, independent of the lease, to secure the payment of rent. Some of the authorities hold that by this means the obligation to pay rent is separated from the estate, and does not follow the reversion.

Rent in arrears is no part of the reversion. In any case such rents are recoverable by the personal representative of the lifetenant. But rent is not in arrears and does not become a debt until the day when by the terms of the lease it becomes payable. Wood v. Partridge, 11 Mass. 488; Randall v. Rich, 11 Mass. 494; Wood Landl. and Ten., § 452.

If there be no time stipulated for the payment of rent, or no such usage as that an agreement to the contrary may be implied, payment is to be made at the end of the year, rent being in its nature a return for the enjoyment of the annual profits of the land. Elmer v. Sand Creek Tp., 38 Ind. 56; Wood v. Partridge, supra; Tayl. Landl. and Ten., § 391.

It may be remarked, that at the common law, in case a lifetenant, who had no power to make a lease to continue beyond the period of his life, leased the estate and died between rent days, the under tenant or lessee escaped the payment of rent entirely from the last rent day. The lessee was not bound to pay the personal representative of his lessor because he suffered a technical eviction on account of the termination of his lessor's estate before the end of the term, or before the rent fell due. The reversioner could not recover, because the estate was not devolved upon him until the termination of the lease, and he was not in privity either of estate or by contract with the lessor. The death of the life-tenant terminated the lease, as well as the estate of the lessor. If the lessee continued in possession, he became thenceforth liable to the rever. sioner under a new contract, but he was absolved from the payment of all rent which had not matured when the estate of his original lessor was determined.

The statute of 11 George II, chap. 19, § 15, after reciting the defects in the law, provided, among other things, that in case the death of a life-tenant, who had leased the estate, happened before the day fixed for the payment of rent, his executor or administrator might recover a proportion of the rent according to the time the

Watson v. Penn.

lessor lived during the last rent period. Substantially to the same effect is § 5223, R. S. 1881.

This statute has however manifestly no application to the case before us. It provides, in substance, that when a tenant for life, who shall have demised any lands, shall die before the day when any rent becomes due, his executor or administrator may recover from the under tenant the rent which accrued before the lifetenant's death.

As we have already seen, the lease or demise under which the rent in controversy accrued was not made by the life-tenant. She took her estate subject to the existing lease. The will which created her life-estate gave the reversion to the appellee's ward, and as the reversion came from the lessor, under whose lease the rent in controversy accrued, it came with the right annexed to collect all accruing rent, as an incident to the estate.

As there was no necessity for a statute in cases where the accru ing rent followed the reversion, the common-law rule prevails.

It is said however because the testator's will provided that his widow should take all his personal property, including all notes and accounts which might be owing him at his death, that by force of this bequest the accruing rents were carried out of the rules above referred to, and thus became the property of the widow.

As it does not appear either from any alleged usage or from the terms of the agreement, that any part of the rent had matured or become payable at the death of the testator, or even at the death of the widow, it is not perceived how the position contended for can be maintained.

The testator died after the lease was made, but before the term commenced. It is impossible therefore in any view of the case to consider the rent which subsequently accrued as an account owing to the testator at the date of his death, so as to be controlled by the will. Accruing rents are however not affected by or included in the general term accounts." While the term "account" has no very clearly defined legal meaning, the primary idea conveyed by it is some matter of debt, or a demand in the nature of a debt, arising out of contract. Nelson v. Board, etc., 105 Ind. 287.

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Rents accruing from, and issuing out of real estate, are in the nature of chattels real, and cannot be assimilated to, or accurately described as accounts, until they have accrued or become due

State v. Webber.

Until then they are annexed to the real estate and an incident of the reversion. Bouvier Dict., title "Rent." The judgment is affirmed, with costs.

Judgment affirmed.

STATE V. WEBBER.

(108 Ind. 31.)

Schools-practicing music-reasonableness of the rule.

A rule that pupils in a public high school shall employ a certain period in the study and practice of music, and provide themselves with certain books therefor, is valid, and an expulsion for unexcused disobedience thereof will be sustained.*

ANDAMUS to compel reinstatement of a pupil in a public school. The opinion states the case. The defendant had judgment below.

MANDAMUS to compul states the case.

J. H. Bradley and L. A. Cole, for appellant.

A. Anderson and M. Nye, for appellees.

Howk, C. J. [Omitting detailed statement of complaint.] An alternative writ of mandate was issued by the court. The appellees appeared and jointly demurred to the relator's verified complaint or affidavit herein, upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the court. The relator excepted, and failing to amend, judgment was rendered against him for appellees' costs.

The sustaining of the demurrer to his verified complaint is assigned here, as error, by appellant's relator.

We have given a full summary of the facts stated by the relator, in his verified complaint herein almost in the language of the pleader. It will be seen therefrom that the superintendent of the free public schools of the city of Laporte, with the sanction of the trustees of the school city of Laporte, had made a rule or regulation for the government of the pupils of the high school, in the graded schools of such city, requiring that each of such pupils

*See Deskins v. Gose (85 Mo. 485), 55 Am. Rep. 387.

State v. Webber.

should, at stated intervals, employ a certain period of time in the study and practice of music, and should provide himself with a prescribed book for that purpose. The relator's son, Abram Andrew, was one of the pupils of such high school, and at the instigation, and by the direction, of his father, he disobeyed or violated such rule and regulation, and refused to employ any period of time in the study and practice of music, and to provide himself with the prescribed book or books for the purpose of the study and practice of music. For his disobedience of such rule or regulation, and his refusal to comply therewith, the pupil, Abram Andrew, was promptly suspended from the high school, and his suspension was approved by the trustees of the school city of Laporte. This action was brought by the father and natural guardian of the suspended pupil to compel, by mandate, the governing authorities of the school corporation to revoke such suspension, and to readmit such pupil, to the high school.

The question for our decision in this case, as it seems to us, may be thus stated: Is the rule or regulation, for the government of the pupils of the high school of the school city of Laporte, in relation to the study and practice of music, a valid and reasonable exercise of the discretionary power conferred by law upon the governing authorities of such school corporation?

In section 4497, Rev. Stat., 1881, in force since August 16, 1869, it is provided as follows: "The common schools of the State shall be taught in the English language; and the trustee shall provide to have taught in them orthography, reading, writing, arithmetic, geography, English grammar, physiology, history of the United States, and good behavior, and such other branches of learning and other languages as the advancement of pupils may require and the trustees from time to time direct."

Under this statutory provision, and others of similar purport and effect, to be found in our school laws, it was competent, we think, for the trustees of the school city of Laporte to enact necessary and reasonable rules for the government of the pupils of its high school, directing what branches of learning such pupils should pursue; and regulating the time to be given to any particular study, and prescribing what book or books should be used therein. Such trustees were and are required, by the express provisions of section 4444, Rev. Stat., 1881, in force since March 6, 1865, to "take charge of the educational affairs" of such city of Laporte; "they

State v. Webber.

may also establish graded schools, or such modifications of them as may be practicable; and provide for admitting into the higher departments of the graded school, from the primary schools of their townships, such pupils as are sufficiently advanced for such admission."

The power to establish graded schools carries with it of course the power to establish and enforce such reasonable rules as may seem necessary to the trustees, in their discretion, for the government and discipline of such schools, and prescribing the course of instruction therein. Confining our opinion strictly to the case in hand, we will consider and decide these two questions, in the order of their statement, namely:

1. Has the appellant's relator shown, by the averments of his verified complaint, that the rule or regulation for the government of the pupils of the high school, in the school city of Laporte, of which he complains, was or is an unreasonable exercise of the discretionary power conferred by law upon the trustees of such school corporation and the superintendent of its schools?

2. Conceding or assuming such rule or regulation to be reasonaable and valid, has the relator shown, in his complaint herein, any sufficient or satisfactory excuse for the non-compliance therewith. and the disobedience thereof, by his son Abram Andrew, a pupil of such high school, or any sufficient or legal ground for the revocation of the suspension of his son, or for his son's readmission as a pupil in such high school?

1. As to the first of these questions, it will be seen from the relator's verified complaint, the substance of which we have heretofore given, that he has not attempted to show, in any manner, that the rule or regulation requiring that each of the pupils of the high school, as one of the exercises prescribed by the superintendent, with the sanction of the trustees, for the pupils of such school, should at stated intervals employ a certain period of time in the study and practice of music, and for that purpose should provide himself with a prescribed book, was not a reasonable and valid exercise of the discretionary power conferred by law upon such trustees and superintendent. It cannot be doubted, we think, that the legislature has given the trustees of the public school corporations the discretionary power to direct, from time to time, what branches of learning, in addition to those specified in the statute, shall be taught in the public schools of their respective

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