Wilder v. Peabody

Mitchell, J. 1 The question raised by this appeal is whether rent accruing under a lease after the date of an assignment by the lessee for the benefit of creditors, under the insolvent law, (Laws 1881, c. 148,) is provable as a debt or claim against his estate. We are clearly of the opinion that it is not. The assignment is for the benefit of creditors having existing debts against the assignor at the time of the assignment. But rent does not accrue to the lessor as a debt or claim, unless payable in advance, until the lessee has enjoyed the use of the premises. It may never become due, for the lessee may be ■evicted, or the premises become untenable. It is neither debitum nor ■solvendum. It is not an existing demand, the cause of action on which depends on a contingency, but the very existence of the demand depends on a contingency. It is wholly uncertain whether the lease will ever give rise to an actual debt or liability. ’ There is no provision in the statute for proving or allowing any such mere contingency as a claim against the estate of an insolvent. See Bordman v. Osborn, 23 Pick. 295 ; Deane v. Caldwell, 127 Mass. 242 ; Riggin v. Magwire, 15 Wall. 549 ; Ex parte Houghton, 1 Lowell, 554 ; In re Commercial Bulletin Co., 2 Woods, 220 ; English v. Key, 39 Ala. 113 . Order affirmed. Berry J., because of illness, took no part in this case.