X. Rents.

X. Rents are the last species of incorporeal hereditaments. The word rent or render, reditus, signifies a compensation or return, it being in the nature of an acknowledgment given for the possession of some corporeal inheritance. It is defined to be a certain profit issuing yearly out of lands and tenements corporeal. It must be a profit; yet there is no occasion for it to be, as it usually is, a sum of money; for spurs, capons, horses, corn, and other matters may be rendered, and frequently are rendered, by way of rent. It may also consist in services or manual operations; as, to plow so many acres of ground, to attend the king or the lord to the wars, and the like; which services, in the eye of the law, are profits. This profit must also be certain; or that which may be reduced to a certainty by either party. It must also issue yearly; though there is no occasion for it to issue every successive year; but it may be reserved every second, third, or fourth year: yet, as it is to be produced out of the profits of lands and tenements, as a recompense for being permitted to hold or enjoy 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 part of the thing granted.462 It must, lastly, issue out of lands and tenements corporeal; that is, from some inheritance whereunto the [42] owner or grantee of the rent may have recourse to distrain. Therefore, a rent can not be reserved out of an advowson, a common, an office, a franchise, or the like. w63 But a grant of

4

Co. Litt., 144.
• Ibid., 142.
t Ibid., 47.

nuity to a man and the heirs of his body,
for that this only chargeth my person,
and concerneth no land, nor savoreth of
the reality, it is not an entail within the
statute." (Co. Litt., 20, a.) And when
certain formalities were necessary for
the passing of real estate by will, which
were not required in a will of personal
estate, it was held that an annuity of in-
heritance passed as personal property
by a will which was not sufficient to
pass real estate. (4 B. & Al., 59.) (See
Taylor v. Martindale, 5 Jurist, 648.)

(62) Before the statute against sub-
infeudations (infra, p. 91), the owner of
the fee might have aliened in fee, reserv-
ing fealty, that is, creating a tenure
between him and his alienor; and any
duties to be performed by the tenant
were called services. If a rent were
reserved upon such a tenure, it was a
rent service. Hence all rent services
due at the present day, from a tenant in

u Plowd., 13. 8 Rep., 71.
wCo. Litt., 144.

fee-simple, must have been created before the statute Quia Emptores. At the present day, to create a tenure, the proposed lord must retain some reversion in himself, and, therefore, a rent service can now only be reserved upon an alienation in tail, for life, or for years. Such a rent may be reserved upon a demise for years without deed. (Litt., sect. 214.)

Of course a rent service must be made payable to the owner of the reversion ; if it be reversed to a stranger, although the reservation may be good by way of contract, in creating an annuity, it does not create a rent service. (Hob., 130.) If, indeed, the demise be for life, and the lessee execute the deed, the reservation may amount to a charge by him, which will give the stranger a good rent charge or rent seck.

(63) A rent may, however, be granted or reserved out of tithes, with all the

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; though it doth not affect the inheritance, and is no legal rent in contemplation of law.

Z

There are at common law three manner of rents, rent service, rent charge, and rent seck. Rent service is so called, be- Rent servcause it hath some corporeal service incident to it, as at the ice, least fealty or the feodal oath of fidelity. For, if a tenant holds his land by fealty, and ten shillings rent, or by the service of plowing the lord's land, and five shillings rent, these pecuniary rents being connected with personal services, are therefore called rent service. And for these, in case they be behind, or arriere, 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. A rent charge is where the rent charge, 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 arriere 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.b64 Rent seck, reditus siccus, or barren rent, is in effect nothing more rent seck. than a rent reserved by deed, but without any clause of distress.65

* Co. Litt., 47. Litt., § 213. 2 Co. Litt., 142. a Litt., § 215. b Co. Litt., 143.

incidents of a rent, except, from the necessity of the case, that of distress. (3 Wils., 25; 2 Saund., 303; stat. 5 Geo. • III., c. 17.) And it is laid down that the queen, by her prerogative, and the subject by statute, may have a rent out of an incorporeal hereditament. (Gilb., Rents, 20.) But a rent can not be reserved out of chattels personal; and if such chattels are demised with land at an entire rent, the rent issues out of the land only. (5 Rep., 17, b; 2 N. R., 224.)

(64) Wherever a man by deed agrees that his land shall be charged with the payment of rent, and shall be liable to distress, this is a rent charge; and if nothing is said of distress, it is a rent seck, provided the grantor's estate in the land is freehold, and the rent is granted for a freehold interest. And if the owner of a rent service grant away the rent, reserving his reversion, or reserving fealty,

this is a rent seck in the hands of the
stranger, although the tenant attorn.
(Litt., sect. 225.)

(65) The only remedy for a rent at common law was distress, assize, or action on the contract; the assize could only be brought after a seizin of the rent had been acquired by the receipt of some portion of it; and, therefore, where there was no clause of distress, and the grantor had never made any payment, there was properly no remedy for the rent whatever, though damages might have been recovered on account of the breach of contract; hence, the term reditus siccus.

A rent service may be reserved out of a term of years demised; but a rent seck is a rent granted out of a freehold estate, and for a freehold interest, that is, for life at least; and, therefore, if a rent is granted out of an estate for years, without an express power of distress, the

Quit rents,

There are also other species of rents, which are reducible to these three. Rents of assize are the certain established rents of the freeholders and ancient copyholders of a manor, which can not be departed from or varied. Those of the freeholders [43] 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 anciently called white rents, or blanch farms, reditus albi; d in contradistinction to rents reserved in work, grain, or baser money, which were called reditus nigri, or black mail. Rack rent 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 of the lands, at the time of its reservation;f 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. 66

rack rent, fee-farm rent.

Remedies

These are the general divisions of rent; but the difference by distress. 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, as in case of rents reserved upon lease.g67

Rents, where and when payable.

Rent is regularly due and payable upon the land from whence it issues, if no particular place is mentioned in the reservation:h 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 demandables and payable before the time of sunset of the day whereon it is reserved; though, perhaps, not absolutely due till midnight. 169

statute cited in the text (which mentions
only rent secks, rents of assize, and
chief rents) does not give any right to
distrain.

(66) Mr. Hargrave is of opinion that
the quantum of the rent is not essential
to create a fee-farm (Co. Litt., 144, n.

5), where he differs from Mr. Douglas,

who had thought that a fee-farm was not
necessarily a rent charge, but might also
be a rent seck. (Doug., 605.) - [CHRIST-
IAN.] See 5 M. & W., 261.

(67) That is, for such as had been paid
for three years, within twenty years be-
fore the passing of that act, or for such
as have been since created. (4) Geo. II.,
c. 28, s. 5; Doug., 627, and n. 1.)-
[CHRISTIAN.]

(68) That is to say, where there is a clause of forfeiture in case the rent is not paid after demand, a demand at sunset is a good demand within the condition. (1 Saund., 287; 4 Taunt., 549.)

(69) If the lessor dies before sunset on the day upon which the rent is demandable, it is clearly settled that the rent unpaid is due to his heir, and not to his executor; but if he dies after sun

set, and before midnight, it seems to be

the better opinion that it shall go to the executor, and not to the heir. (1 P. Wms., 178; Toller on Executors, 177, 178.) - [CHRISTIAN.] The distinction between sunset and midnight seems to be scarcely tenable. See 1 Saund., 288, n. (17); 2 Madd., 268. And see, now,

With regard to the original of rents, something will be said in the next chapter; and, as to distresses and other remedies

the stat. 4 & 5 Will. IV., c. 22, stated below.

If the reversion to which a rent service is incident become partitioned among several persons by act of law, as by a descent to several daughters, or to heirs in gavelkind, the rent is apportioned, and the tenant owes a duty, in respect of each portion, to the respective owners. (Co. Litt., 148, a, 215, a; 4 Rep., 120, b.) And where freehold and leasehold properties are let at an entire rent, an apportionment becomes necessary on the death of the lessor, between his real and his personal representatives. (1 And., 21.) Formerly, the reversioner could not, by his own act in selling a part of the reversion, oblige the tenant to an apportionment unless the latter assented by attorning to the grantee. (See Co. Litt., 150, a.) But it seems that since the necessity of attornment has been taken away by the stat. 14 Ann., c. 16, the rule is different as to a rent service; and in a recent case, it was even held that devisees or bargainees in common of a rent charge might make several distresses without the as sent of the person chargeable. (5 Mee. & W., 255.)

If the tenant aliene a part of the land, or if the whole is assigned to several persons in common, each assignee is personally liable for the rent in proportion to the amount of the share held by him; but the original lessee remains liable for the whole; and of course the landlord retains his right to distrain for the whole of the rent upon any part of the land. (2 Lev., 231; 2 East, 580; 1 Roll. Ab., 285, pl. 17; 1 Scott, 742.)

On the other hand, if the tenant he evicted from a part of the land by a person claiming under a title paramount to that of the lessor, he is discharged pro tanto, but remains liable for a proportional part of the rent in respect of the residue of the land. (2 East, 575) But "concerning the apportionment of rents there is a difference between a grant of a rent and a reservation of a rent; for if a man be seized of two acres of land, of one in fee-simple, and of another in tail, and by his deed grant a rent out of both in fee, in tail, for life, &c., and dieth, the land in tail is discharged, and the land in fee-simple remains charged with the whole rent; for against his own grant he shall not take advantage of the weakness of his own estate in part. But if he

rents.

make a gift in tail, a lease for life or for Apportion-
years of both acres, reserving a rent, the ment of
donor or lessor dieth, the issue in tail
avoideth the gift or lease, the rent shall
be apportioned; for, seeing the rent is
reserved out of and for the whole land,
it is reason that when part is evicted by
an elder title, that the donee or lessee
should not be charged with the whole
rent, but that it should be apportioned
ratably according to the value of the
land." (Co. Litt., 148, b.) "If a man
which hath a rent service purchase par-
cel of the land out of which the rent is
issuing, this shall not extinguish all, but
for the parcel. For a rent service in
such case may be apportioned accord-
ing to the value of the land. But if one
holdeth his land of his lord by the serv-
ice to render to his lord yearly at such
a feast, a horse, a golden spear, or a clove,
gillyflower, and such like, if in this case
the lord purchase parcel of the land, such
service is taken away, because such serv-
ice can not be severed nor apportioned."
(Litt., sect. 222.)

Again, if a man hath a rent charge to
him and his heirs, issuing out of certain
land, if he purchases any parcel of this
to him and his heirs, all the rent charge
is extinct, and the annuity also; but if
his father had purchased the parcel of
the lands and had died, and this parcel
had descended to the son, the charge
would have been apportioned, because
the son took not the land by his own
act, but by act of law, which shall do
wrong to no one. (Litt., s. 222, 224.)

There may also be an apportionment of a rent or an annuity in respect of time, as to which the question arises when the right of the person entitled to the rent or annuity ceases in the interval between two days of payment. When a tenant is evicted by title paramount in the middle of a quarter, it is said to be doubtful whether he is liable for a proportion of the rent in respect of the time elapsed since the last quarter-day. The better opinion seems to be that he is not. (See Chamb., Land. and Ten., 593; 8 Ad. & El., 366; 5 B. & Cr., 332; 8 Id., 324.)

The other cases of apportionment in respect of time may be divided into two classes: the one, where the rent or annuity ceases in the interval between two days of payment; the other, where the rent or annuity continues, but the interest of some particular person in it ceas

ment.

for their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part

Apportion- es between two days of payment, and another person then becomes entitled. In the former case, unless there be an apportionment, the tenant or grantor is discharged pro tanto; in the latter case he is not discharged.

At common law, if an annuity was granted for life, or if a lease was made determinable with a life, at a rent, there was no apportionment upon the dropping of the life in the middle of a quarter (10 Rep., 127; 1 P. W., 392), except, perhaps, in the case of an annuity granted by a man for the separate maintenance of his wife. (2 W. Bl., 843, 1016; 2 P. Wms., 502.)

By the 15th sect. of the stat. 11 Geo. II., c. 19 ("an act for the more effectual securing the payment of rents and preventing frauds by tenants"), where rent has been reserved upon a lease determinable on the death of a tenant for life, and the tenant for life dies on or before the day of payment, the executors or administrators of the tenant for life may, by action on the case, recover rent from the time elapsed from the commencement of the current quarter or other period. This statute was held to extend to leases by tenants in tail, but it was doubtful whether leases of tithes granted by parsons, or leases determinable on the lives of third persons, were within its operations. (1 Swanst., 347, 356; 2 Ves. & B., 331; 3 Taunt., 331.) The statute 4 & 5 W. IV., c. 22, after reciting the former act, and that doubts had been entertained whether it applied to every case in which the interests of tenants determine on the death of the person by whom such interests have been created, and on the death of any life or lives for which such person was entitled to the lands demised, although every such case is within the mischief intended to have been remedied, brings within the former act all leases determinable on the death of the person making the same, although he was not strictly tenant for life thereof, and all leases determinable with the life or lives for which the lessor was entitled.

The same act also recites that, by law, rents, annuities, and other payments due at fixed or stated periods, are not apportionable (unless by express provision), from which it often happens that persons (and their representatives), whose income is wholly or principally derived from these sources, are deprived of

means to satisfy just demands, and other evils arise from such non-apportionment, which evils require remedy; and enacts (sect. 2), that all rents service reserved on any lease by a tenant in fee or for any life interest, or by any lease granted under any power, and all rent charge, and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description made payable or becoming due at fixed periods, shall be apportioned, so that on the death of any person interested in any such rents, &c., or in the estate, fund, office, or benefice, from or in respect of which the same shall be issuing or derived, or on the determination by any other means whatsoever of the interest of any such person, he or his executors, administrators, or assigns, shall be entitled to a proportion of such rents, &c., according to the time which shall have elapsed from the commencement or last period of payment (as the case may be), with such remedies for recovering such apportioned parts, when the entire portion of which such apportioned parts shall form part shall become due and payable, and not before, as he or they would have had for recovering such entire rents, &c., if entitled thereto; but so that persons liable to pay rents reserved by any lease or demise, and the lands, &c., comprised therein, shall not be resorted to for such apportioned parts specifically; but the entire rents shall be received by the person, who, if the act had not passed, would have been entitled to such entire rents, and who shall be liable for the apportioned parts. The act concludes with a saving of express stipulation against apportionment, and of annual sums made payable in policies of assurance of any description.

The language seems so exclusively to contemplate continuing rents, &c., that there is great reason to doubt whether it would apply to cases where the rent, &c., itself, and the interest of the party in whose favor the apportionment is sought to be made, cease at the same moment; as, for instance, where an annuity is granted to A. during his life, or where a tenant in fee makes a lease for life, reserving rent. (See 4 Per. & Dav., 313.)

Another important question upon the statute is, whether the words "on the determination by any other means of the interest of any such person," so control the effect of the preceding general