joy them, it ought to be reserved yearly, because those profits do annually arise and are annually renewed. It must issue out of the thing granted, and not be part of the land or thing itself; wherein it differs from an exception in the grant, which is always of part of the thing granted (t). It must, lastly, issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner or grantee of the rent may have recourse to distrain. Therefore a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the like (u). But a grant of such annuity or sum may operate as a personal contract, and oblige the grantor to pay the money reserved, or subject him to an action of debt (w) (73): though it doth not affect the inheritance, and is no legal rent in contemplation of law. (73) To determine the legality of leases, by ecclesiastical persons, of tithes or other incorporeal hereditaments, ly ing in grant and not in livery, respecting which doubts had existed, notwithstanding the antient rent or yearly sum was reserved in such leases, and all the other requisites prescribed by the acts of parliament previously in being, were duly attended to; and also to remove the doubts, whether there was any remedy for recovering the rent or yearly sum so reserved, by reason that there is generally no place wherein a distress can be had or taken for such rent or yearly sum: it was enacted by the statute of 5 Geo. III. c. 17, that such leases were valid, and that the arrears of rent, or yearly sum reserved in such leases, may be recovered by action of debt. Whether a lay impropriator, who has demised his tithes for life, reserving an annual payment, but without an express covenant on the part of the lessee to discharge it, comes within the letter of this act, has been doubted by Mr. (w) Ibid. 47. Wooddeson (21 Vin. Lect.). The ground of the doubt is, that the statute only specifies ecclesiastical persons and corporations; but Mr. Wooddeson thinks, that, even if a lay impropriator had no remedy at law for recovery of the arrears of the annual sums reserved on such a lease, he would obtain relief in equity. The legal objection, he inti. mates, would be, that an action of debt, being a personal action, is not at common law maintainable to recover a rent reserved on a freehold lease; and that, although this is remedied by the statute of 8 Ann. c. 14, s. 4, as to proper rents issuing out of corporeal hereditaments, it is questionable whether that statute applies to annual payments reserved in leases of incorporeal hereditaments, which are not properly rents, because they want the remedy of dis there are three manner of rents, viz. There are at cominon law (a) three manner of rents, rent- At common law service, rent-charge, and rent-seck. Rent-service is so called *because it hath some corporal service incident to it, as at the least fealty or his feodal oath of fidelity (y). For, if a tenant holds his land by fealty, and ten shillings rent, or by the service of ploughing the lord's land, and five shil rent-service, [ *42 ] hereditaments follow the general nature of rents, and, in case of the lessor's decease, will go to his heirs, as incident to the reversion, and not to his personal representatives. (Tipping v. Grover, T. Raym. 18. Bally v. Wells, Wilmot's Notes, 318). In his 12th note to The Dean and Chapter of Windsor v. Gover, (2 Saund. 305), Serjeant Williams seems to have no doubt that the statute of 8 Anne does enable lay impropriators to make leases of tithes for life, and to bring debt for the rent: but this opinion is not founded upon any words in the act expressly naming lay impropriators; and does not seem to be an absolutely necessary, though it certain ly is not a forced, inference from the 7th section of the statute of 34 Hen. VIII. c. 7, which, for many purposes, but not expressly for the one in question, puts tithes in the hands of layimpropriators upon the same footing with their corporeal hereditaments. A rent may be reserved to the king in a grant of incorporeal hereditaments, because, by his prerogative, he may distrain for such rent on all the lands of his lessee. As he has a remedy, there is no reason why such reservation should be void. Upon analogous principle, a subject may reserve a rent upon a grant of an estate in remainder or reversion; for though the grantee cannot distrain during the continuance of the particular estate, yet, there will be a remedy by distress whenever the remainder or reversion comes into possession. So, where a person grants a future interest in lands, he may reserve a rent immediately; if it be a lease for years, it will be a contract upon which an action for debt may be grounded as soon as any arrears accrue; and the lessor may have his remedy by distress, when the lease comes into possession. (Cruise's Dig. tit. 28, c. 1, ss. 22, 23, 25; citing 1 Inst. 47 a. and 2 Rolle's Abr. 446). It may, perhaps, be thought, that some of the instances given in the text of services which have been held to constitute good rents, are not quite consistent with that part of the definition of a rent which says, it must be certain, and must also issue yearly: but Lord Coke has anticipated this objection, and observed (in 1 Inst. 96), it is a maxim in law, that no distress can be taken for any services that are not put into certainty, or cannot be reduced to any certainty. But, id certum est, quod certum reddi possit; and in some cases there may be a certainty in uncertainty; as a man may hold of his lord to shear all the sheep depasturing within the lord's manor; and this is certain enough, albeit the lord nath sometime a greater number, and sometime a lesser number there; et sic de similibus. rent-charge, rent-seck. Other species of rents are Rents of assise, [ *43 ] rack-rents, and fee-farm rents. lings rent, these pecuniary rents being connected with personal services, are therefore called rent-service. And for these, in case they be behind, or arrere, at the day appointed, the lord may distrain of common right, without reserving any special power of distress; provided he hath in himself the reversion, or future estate of the lands and tenements, after the lease or particular estate of the lessee or grantee is expired (z). A rent-charge is where the owner of the rent hath no future interest, or reversion 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 distrain 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 rent-charge, because in this manner the land is charged with a distress for the payment of it (a). 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 (b), 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 (c); in contradistinction to rents reserved in work, grain, or baser money, which were called *reditus nigri, or black-mail (d). Rackrent is only a rent of the full value of the tenement, or near A fee-farm rent is a rent-charge issuing out of an estate it. (z) Litt. s. 215. (a) Co. Litt. 143. (b) 2 Inst. 19. (e) In Scotland this kind of small payment is called blanch-holding, or reditus alba firma. (d) 2 Inst. 19. in fee; of at least one fourth of the value of the lands (74), at the time of its reservation (e): 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. The remedy for their recovery, the like in all. 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 assize, and chief-rents (75), as in case of rents reserved upon lease (f). Rent is regularly due and payable upon the land from Where rent is whence it issues, if no particular place is mentioned in the payable. reservation (g): but in case of the king, the payment must (e) Co. Litt. 143. (f) Stat. 4 Geo. II. c. 28. (g) Co. Litt. 201. (74) This passage of the text has been the subject of considerable controversy. Mr. Hargrave (in note (5) to Co. Litt. 144 a) holds, that the name fee-farm is founded upon the perpetuity of the rent or service, not on the quantum: and he is of opinion, that the term of fee-farm is not properly applicable to any rents except rent-service. In the notes to Bradbury v. Wright, (2 Doug. 627), it is contended, that a fee-farm may either be a rent-seck, or a rent-charge, but, unless it was created before the statute of quia emptores, or by a grant of the crown, cannot be a rent-service. Blackstone's error, (it is there added) appears only to have been in stating that it must be a rent-charge, by taking that which was simply meant by Lord Coke as an instance, to be a definition of a fee farm rent; and (it is further held, upon apparently very sufficient authority), our author is quite justified in saying, that the quantum of a feefarm rent must have been, at the time of its creation, not less than one fourth of the value of the lands, in the grant of which it was reserved. The annotator on Bradbury v. Wright, concludes thus-where there is a lease in fee-farm since the statute of quia emptores, there may be a fee-farm rent which is not a rent service; but where there is tenure in fee-farm, the rent is rent-service. (75) The 5th section of the statute cited by our author as his authority limits the remedies thereby given for the recovery of rent-seck, rents of assise, and chief rents, to the cases of such of the said rents as had been duly answered and paid for the space of three years, within the space of twenty years before the first day of the Session of Parliament in which the act was passed, or which should thereafter be created. And it is essential, that an avowry for a distress in respect of a rent-seck should pursue the terms of the statute, and bring the case within it. (Bradbury v. Wright, Doug. 627 a, 628). At what time. be either to his officers at the Exchequer, or to his receiver in the country (h). And strictly the rent is demandable and payable before the time of sun-set 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. (h) 4 Rep. 73. (i) Co. Litt. 302. 1 Anders. 253. (k) 1 Saund. 287. Prec. Chanc. 555. Salk. 578. |