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CHAPTER VII.

RENTS.

SECTION I.

NATURE, KINDS, AND REMEDIES.

Lit. & 213. Three manner of rents there be, that is to say, rent service, rent charge, and rent seck. Rent service is where the tenant holdeth his land of his lord by fealty and certain rent, or by homage, fealty and certain rent, or by other services and certain rent. And if rent service at any day, that it ought to be paid, be behind, the lord may distrain for that of common right.'

1 “Before the passing of the Statute of Quia Emptores, 18 Ed. 1, St. 1, which pro. hibited the subinfeudation of land, rents might be and were reserved upon a feoffment in fee simple. Such rent was rent service incident to the seigniory, and was distrain. able for of common right. Lit. 216. Many rents so created are still in existence, and are variously termed chief rents, rents of assize, quit rents, and fee farm rents. Chief rents, in the original, as distinguished from the modern sense of the word, are such rents as are payable by the freeholders of a manor to the lord under whom they hola. 1 Steph. Com. 675. Rents of assize are similar rents payable by a freeholder or copy. holder of a manor, the name being derived from the original reservation having been assized, i. e., reduced to a certainty by the lord of the manor. Serxen. on Copyholds, 6th ed., 208. The term quit rent is often applied to both chief rents and rents of assize, but, strictly speaking, is applicable only to a rent reserved in lieu of all services, because then the tenant is quit from other services. Scriven on Copyholas, 6th ed., 208. All these are rents service, and must have been paid immemorially (Scriven on Copy. holds, 6th ed., 208), or at least since before the passing of the Statute Quia Emptores.

Fee farm rents, though very similar, differ somewhat from those last mentioned. They were rents reserved upon feoffments of land in fee rendering yearly the true value, or more or less, for which tenements neither homage, wardship, marriage, nor relief could be demanded without special stipulation. Britton, book iii. ch. ii. Feoffments of this kind appear thus to have been more analogous to a lease at rack rent than to an ordinary feudal grant, in which the services were regarded as of more importance than the rent. With the growth of the commercial and decay of the feudal spirit, this form was no doubt increasingly adopted. We read in Hallam's Middle Ages, Ch. viii. part iii., that one of the earliest and most important changes in the condition of the burgesses of towns was the conversion of their individual tributes into a perpetual rent from the whole borough. The town was then said to be affirmed or let in fee farm to the burgesses and their successors forever.

A fee farm rent is often stated as a rent in fee issuing out of an estate in fee of at least one fourth of the value of the land at the time of its reservation. 2 Blackstone, 43; note to Bradbury v. Wright, 1 Doug. 626; Spelm. Gloss. 221, col. 1. The name, however, is founded on the perpetuity of the rent, not on the quantum. Harg., note to Co. Lit. 143 b; Mad. Firm. Burg. 3. Mr. Hargrave states that the sometimes confining the term of fee farm to rents of a certain value probably arose partly from

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Co. Lit. 142 a. And the rent may as well be in delivery of hens, capons, roses, spurs, bows, shafts, borses, hawks, pepper, comin, wheat, or other profit that lieth in render, office, attendance, and such like, as in payment of money. But a man upon his feoffment or conveyance cannot reserve to him parcel of the annual profits themselves, as to reserve the vesture or herbage of the land or the like, for that should be repugnant to the grant: non debet enim esse reservatio de proficuis ipsis, quia ea conceduntur, sed de redditu novo extra proficua.?

Lit. $ 214. And if a man will give lands or tenements to another in the tail, yielding to him certain rent by the year, he of common right may distrain for the rent behind, though that such gift was made without deed, because that such rent is rent service. In the same manner it is, if a lease be made to a man for life, or the life of another, rendering to the lessor certain rent, or for term of years rendering rent.

Lit. $ 215. But in such case, where a man upon such a gift or lease will reserve to him a rent service, it behooveth, that the reversion of the lands and tenements be in the donor or lessor. For if a man will make a feoffment in fee, or will give lands in tail, the remainder over in tee simple, without deed, reserving to him a certain rent, this reservation is void, for that no reversion remains in the donor, and such tenant holds his land immediately of the lord, of whom his donor held, &c.

Lit. $ 216. And this is by force of the Statute of Quia Emptores terrarum. For before that Statute, if a man had made a teoftment in fee simple, by deed or without deed, yielding to him and to his heirs a certain rent, this was a rent service, and for this he might have distrained of common right; and if there were no reservation of any rent, nor of any service, yet the feoffee held of the feoffor by the same service, as the feoffor did hold over of his lord next paramount.

LIT. $ 217. But if a man. bv deed indented, at this day maketh such

the Statute of Gloucester, which gave the cessavit only where the rent amounted to one fourth of the value of the land, and partly from its being most usual on grants in fee farm not to reserve less than a third or fourth of such value. It is stated in Britton, book iii. ch. ii., that if the feoffees ceased to pay the rent for two years together, an action thereby accrued to the feoffors or their heirs to demand the tenements in demesne.

“It would appear to be the better opinion that fee farm rents, properly so called, are rents service, and cannot therefore be created since the passing of the Statute Quia Emptores. Harg., note to Co. Lit. 143 b. The term, however, has been freely used, and in very modern Acts of Parliament; e. g., Conveyancing Act, 1881, § 14 (3); Settled Land Act, 1882, 55 T0, 20, with reference to the rent charges which are continually being created as the consideration for conveyances of freehold land." - Harrison, Chief Rents, 2-5.

As to which of the United States have preserved the law of distress, see 2 Tayl. Landl. & Ten. (8th ed.) 88 558, 559.

1 “A reservation of a part of the thing demised cannot properly operate as a render, and it may be admitted that it operates as an exception." Per LORD ELLENBOROUGH, C. J., in The King v. Pomfret, 5 M. & S. 139, 143 (1816). Cf. The King v. St. Austell, 5 B. & Ald. 693. See also Doe d. Edney v. Benham, 7 Q. B. 976.

a gift in fee tail, the remainder over in fee; or lease for life, the remainder over in fee; or a feoffment in fee; and by the same indenture he reserveth to him and to his heirs a certain rent, and that if the rent be behind, it shall be lawful for him and his heirs to distrain, &c., such a rent is a rent charge ; because such lands or tenements are

rentanem charged with such distress by force of the writing only, and not of common right. And if such a man, upon a deed indented, reserve to him and to his heirs a certain rent, without any such clause put in the deed, that he may distrain, then such rent is rent seck; for that he cannot come to have the rent, if it be denied, by way of distress : and if in this case he were never seised of the rent, he is without remedy, as shall be said hereafter.

Co. LIT. 144 a. Note that upon a reservation of a rent upon a feoffment in fee by deed indented, the feoffor shall not have a writ of annuity, because the words of reservation, as reddendo, solvendo, faci. endo, tenendo, reservando, &c., are the words of the feoffor, and not of the feoffee, albeit the feoffee by acceptance of the estate is bound thereby.

Lit. $ 218. Also, if a man seised of certain land grant, by a deed poll, or by indenture, a yearly rent to be issuing out of the same land, to another in fee, or in fee tail, or for term of life, &c., with a clause of distress, &c., then this is a rent charge; and if the grant be without clause of distress, then it is a rent seck. And note that rent seck idem est quod redditus siccus ; for that no distress is incident unto it.

LIT. § 219. Also, if a man grant by_his deed a rent charge to another, and the rent is behind, the grantee may choose whether he will sue a writ of annuity for this against the grantor, or distrain for the rent behind, and the distress detain until he be paid. But he cannot do, or have, both together, &c. For if he recovers by a writ of annuity, then the land is discharged of the distress, &c. And if he doth not sue a writ of annuity, but distrain for the arrearages, and the tenant sueth his replevin, and then the grantee avow the taking of the distress in the land in a court of record, then is the land charged, and the person of the grantor discharged of the action of annuity.

Lir. $ 220. Also, if a man would that another should have a rent charge issuing out of his land, but would not that his person be charged in any manner by a writ of annuity, then he may have such a clause in the end of his deed. Provided always that this present writing, nor anything therein specified, shall any way extend to charge my person by a writ or an action of annuity, but only to charge my lands and tenements with the yearly rent aforesaid, &c. Then the land is charged, and the person of the grantor discharged.

Lit. $ 225. Also, if there be lord and tenant, and the tenant holds of his lord_by fealty and certain rent, and the lord grant the rent by his deed to another, &c., reserving the fealty to himself, and the tenant attorns to the grantee of the rent, now this rent is rent seck to the

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rent behind, sa pannuity for this, the grantes

grantee; because the tenements are not holden of the grantor of the rent, but are holden of the lord who reserved to him the fealty.

LIT. $ 226. In the same manner, where a man holds his land by homage, fealty and certain rent, if the lord grant the rent, saving to him the homage, such rent after such grant is rent seck. But there where lands are holden by homage, fealty and certain rent, if the lord will grant by his deed the homage, of his tenant to another, saving to him the remnant of his services, and the tenant attorn to him according to the form of the grant; in this case the tenant shall hold his land of the grantee, and the lord who granted the homage shall have but the rent as a rent secke and shall never distrain for the rent, because that homage nor fealty nor escuage cannot be said seck, for no such service may be said seck. For he, which hath or ought to have homage, fealty or escuage of his land, may by common right distrain for it, if it be behind; for homage, fealty and escuage are services, by which lands or tenements are holden, &c., and are such services as in no manner can be taken but as services, &c.

LIT. $ 227. But otherwise it is of a rent, which was once rent service; because when it is severed by the grant of the lord from the other services, it cannot be said rent service, for that it hath not fealty unto it, which is incident to every manner of rent service; and therefore it is called rent seck. And the lord cannot grant such a rent with a distress, as it is said.

Lit. & 228. Also, if a man let to another lands for_term of life, reserving to him certain rent, if he grant the rent to another by his deed, saving to him the reversion of the land so letten, &c., such rent is but a rent seck; because that the grantee had nothing in the reversion of the land, &c. But if he grant the reversion of the land to another for term of life, and the tenant attorn, &c., then hath the grantee the rent as a rent service ; for that he hath the reversion for term of life.

LIT. $ 233. Also, if a man which hath a rent seck, be once seised of any parcel of the rent, and after the tenant will not pay the rent behind, this is his remedy. He ought to go by himself or by others to the lands or tenements out of which the rent is issuing, and there demand the arrearages of the rent; and if the tenant deny to pay it, this denial is a disseisin of the rent. Also, if the tenant be not then ready to pay it, this is a denial, which is a disseisin of the rent. Also, if the tenant, nor any other man, be remaining upon the lands or tenements to pay the rent when he demandeth the arrearages, this is a denial in law, and a disseisin in deed, and of such disseisins he may have an aşsize of novel disseisin against the tenant, and shall recover the seisin_of the rent, and his arrearages and his damages, and the costs of his writ and of his plea, &c. And if after such recovery and execution had the rent be again denied unto him, then he shall have a redisseisin, and shall recover his double damages, &c.

Lir. § 235. Also, if there be lord and tenant, and the lord granteth the rent of his tenant by deed to another, saving to him the other ser

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vices, and the tenant attorneth, that is a rent seck, as it is aforesaid. But if the rent be denied him at the next day of payment, he hath no remedy ; because that he bad not thereof any possession. But if the tenant when he attorneth to the grantee, or afterwards, will give a penny or a half-penny to the grantee in name of seisin of rent, then if after at the next day of payment the rent be denied him, he shall have an assise of novel disseisin. And so it is if a man grant by his deed a yearly rent issuing out of his land to another, &c. if the grantor then or after pay to the grantee a penny, or an half-penny, in the name of seisin of the rent, then, if after the next day of payment the rent be denied, the grantee may have an assise, or else not, &c.

Lit. $ 23. Also, of rent seck a man may have an assize of mortdauncester, or a writ of ayel or cosinage, and all other manner of actions real, as the case lieth, as he may have of any other rent.

Lit. $ 237. Also, there be three causes of disseisin of rent service, that is to say, rescous, replevin, and enclosure. Rescous is, when the lord distraineth in the land holden of him for his rent behind, if the distress be rescued from him, or if the lord come upon the land, and will distrain, and the tenant or another man will not suffer him, &c. Replevin is, when the lord hath distrained, and replevin is made of the distress by writ or by plaint. Enclosure is, if the lands and tenements be so enclosed, that the lord may not come within the lands and tenes ments for to distrain. And the cause, why such things so done be disseisins made to the lord, is for this, that by such things the lord is disturbed of the mean by which he ought to have come to his rent, scil., of the distress.

LIT. § 238. And there be four causes of disseisin of a rent charge: scil., rescous, replevin, enclosure, and denial; for denial is a disseisin of a rent charge, as is said before of a rent seck.

LIT. $ 239. “And there be two causes of disseisin of a rent seck ; that is to say, denial and enclosure.

Lit. & 240. And it seemeth, that there is another cause of disseisin of all the three services aforesaid ; that is, if the lord is going to the land holden of him for to distrain for the rent behind, and the tenant hearing this encountereth with him, and forestalleth him the way with force and arms, or menaceth him in such form that he dare not come to the land to distrain for his rent behind for doubt of death, or bodily

ndito di information pont homines for o ther be too moeite hurt, this is a disseisin, for that the lord is disturbed of the mean whereby he ought to come to his rent. And so it is, if, by such forestalling or menacing, he that hath rent charge or rent seck is forestalled, or dare not come to the land to ask the rent behind, &c.

Lit. $ 346. And here note two things : one is, that no rent (which is properly said a rent) may be reserved upon any feoffment, gift, or lease, but only to the feoffor, or to the donor, or to the lessor, or to their heirs, and in no manner it may be reserved to any strange person. But if two joint tenants make a lease by deed indented, reserving to one of them a certain yearly rent, this is good enough to him to whom the

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land hof this encounteretbooth him in such forn doubt of death the mean

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