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sion [see note 15, page 86] expectant in the land; as where a man by deed maketh over to others his whole estate in fee-simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrere, or behind, it shall be lawful to distrein for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed* and therefore it is called a rentcharge because in this manner the land is charged with a distress for the payment of it. Rent-seck, reditus siccus, or barren rent, is in effect nothing more than a rent reserved by deed, but without any clause of distress.†

There are also other species of rents, which are reducible to these three. Rents of assise are the certain established rents of the freeholders and antient copyholders of a manor, which cannot be departed from or varied. Those of the freeholders are frequently called chief rents, reditus capitales; and both sorts are indifferently denominated quit rents, quieti reditus; because thereby the tenant goes quit and free of all other services. When these payments were reserved in silver or white money, they were antiently called white-rents, or blanch-farms, reditus albi; in contradistinction to rents reserved in work, grain, or baser money, which were called [43] reditus nigri or black mail. Rackrent is only a rent of the full value of the tenement or near it. A fee-farm rent is a rent-charge issuing out of an estate in fee; ‡ of at least one fourth of the value

a Co. Litt. 143.

b 2 Inst. 19.


c In Scotland this kind of small payment is called blanch-holding. or reditus albæ firmæ.

d 2Inst. 19.

8 Previously, "etc."

**Quoted, 19 N. Y. 76.

† Cited, as to rent-service, 3 Denio, 141; 2 Cowen, 656; 3 Hen. & M. 484; as to rent-seck, 44 Pa. St. 495; as to rent-charge, 6 Halst. 276; 2 Yeates, 25; and generally, 2 Cowen, 456; 6 Vroom, 182; 5 Call, 380; 21 Fla. 620; 65 N. C. 72.

- Quoted, 6 N. Y. 497; 57 Am. Dec. 478.

of the lands, at the time of it's reservation : for a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in fee simple instead of the usual methods for life or years.*

These are the general divisions of rent; but the difference between them (in respect to the remedy for recovering them) is now totally abolished; and all persons may have the like remedy by distress for rents-seck, rents of assise, and chief-rents, as in case of rents reserved upon lease.'

Rent is regularly due and payable upon the land from whence it issues, if no particular place is mentioned in the reservation: but, in case of the king, the payment must be either to his officers at the exchequer, or to his receiver in the country. And, strictly, the rent is demandable and payable before the time of sunset of the day whereon it is reserved; i though perhaps not absolutely due till midnight.k

With regard to the original of rents, something will be said in the next chapter: and, as to distresses and other remedies for their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby they are redressed.

e Co. Litt. 143.

f Stat. 4 Geo. II. c. 28.

g Co. Litt. 201.

h 4 Rep. 73.

i 8 Co. Litt. 302. 81. Anders. 253.

k 1 Saund. 287. 8 Prec. Chanc. 555. Salk, 578.8

8 Previously, "1 Chan. Prec. 555."

8 Previously, "some have thought it."

Therefore the creation of a new fee-farm rent is as impossible under the statute quia emptores as that of a new fee-simple.


(8) An incorporeal hereditament, etc., page 20.

In defining this term Blackstone has not repeated his definition of hereditament, apparently taking it for granted that no one would apply the name of the subclass to anything which may not be inherited, that being an essential property of the class. (Text, p. 18.) But experience shows that the definition taken by itself has sometimes been applied to objects that are incorporeal, but in no sense hereditaments, e. g., to mining licenses (Beatty v. Gregory, 17 Iowa, 109), public easements, etc. Mr. Broom, therefore, has corrected this by adding "transmissible to heirs, according to the law regulating the inheritance of land." (Broom and Hadley, ii, 20.) But he has also changed Blackstone's" issuing out of a thing corporate, whether real or personal," and said that "except in a few cases an incorporeal hereditament issues out of or is annexed to a corporeal hereditament." (Broom and Hadley, ii, 20.) There was no such limitation to the common-law conception; but in fact the few kinds of incorporeal hereditaments still in use in American law do thus issue out of land, I believe, without exception; and even in England, according to Sergeant Stephen, "the term of incorporeal hereditament is in effect exclusively applied to the class of things real; and may in such case be defined as a right annexed to, or issuing out of, or exercisable within an hereditament corporeal of that class." (New Com. vol. 1,666.)

A hereditament at common law was not necessarily land or even real property. Anything (in possession) that would descend to a man's heirs, instead of passing to his executor or administrator, was a hereditament; and if not land it was an incorporeal hereditament. Thus annuities to a man and his heirs, tithes, advowsons, offices, corodies, franchises, dignities, were incorporeal hereditaments. Most of these have dropped out

of the class with us in America, because they no longer pass to heirs in the strict sense of the word, if they have not become obsolete entirely. Tithes, advowsons, corodies, are unknown with us. Offices and franchises have lost entirely their hereditary character. Rents are almost the only such hereditaments enumerated by Blackstone that may still be regarded as such when held as distinct objects of ownership (in gross), and these are The only remaining examples are usually appendant to some estate in land (ways, commons), and as such are easements. For this reason easements and incorporeal hereditaments are often confounded together, and what is true of one term is spoken of as belonging to the other. But an easement is not necessarily a hereditament, and most incorporeal hereditaments are not easements.


A still worse blunder is that of ranking estates and easements together as divisions of a single genus. One may have an estate of any quantity in an easement, as well as in a piece of land or corporeal hereditament; but it is on the assumption that the easement is also an incorporeal hereditament. One can have no estate in an easement in gross, or in a chattel. (Note 51, p. 518.)

Easement and its correlative servitude belong to the class of words that denote the object of a right, and not the right itself; and in that respect are in the same category with hereditament. But servitude connotes the object with regard to the land over which the right is to be exercised, not the object of the right itself. It is not an appurtenance of the servient estate, any more than the sum due (the duitie in the precise old phrase of the Y. B.) is a part of the debtor's property. It is what in mathematics would be called a minus, a negative quantity. Hence for the purposes of classification it had better be dismissed from thought, as only another name for the same thing or object of right, regarded from the standpoint of duty instead of right.

Remainders and reversions have often in recent books been included among incorporeal hereditaments, because they formerly "lay in grant" and not in livery. But Stephen has well said that "the more convenient and juster arrangement is that adopted by Blackstone. The larger use of the term confounds the estate which may be had in the property with the property itself." (New Com. vol. 1, 666, n. d.) The remainder or reversion is as truly a form of estate as a freehold in possession, and may have either a corporeal or incorporeal hereditament for its object. But a title to enter for condition broken is properly called an incorporeal hereditament. The party entitled has no ostate in the land whatever, and there is no confusion. (Marquis of Winchester's Case, 3 Coke, 2; 2 Wooddesson, 38.) If we call reversions and remainders incorporeal hereditaments we must revise many well-settled rules of law, e. g., that a rent cannot be granted out of an incorporeal hereditament; for it is agreed that rent may be reserved on the grant of a reversion, even if a dry reversion that had before no rent attached to it. (Whitlock's Case, 8 Coke, 69.)

American writers have gone still further and added uses and trusts to the list of incorporeal hereditaments, although Professor Wooddesson had said distinctly: "With us a trust or beneficial estate in lands is never ranked among incorporeal hereditaments" (2 Lectures, 38, Lect. xxi.), and Lord Coke's well-known description of a use (1 Inst. 272 b) as neither jus in re nor jus ad rem, but collateral to the land, might have been a sufficient warning. One writer (Mr. A. Bingham) has even divided the whole subject of real estate into the two heads of Estates and Easements, as if one could have any easement except by an estate in it.

(9) Common because of vicinage, page 33.

Professor Wooddesson has said truly that common

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