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APPORTICNMENT, SUSPENSION, AND EXTINGUISHMENT. 707
an action merely personal. It is clear from Leving's Case that where no real action could be brought, debt would lie; and inasmuch as the abolishing of real actions has removed that remedy, I quite agree with my Brothers Blackburn and Quain that in the present case the action of debt is maintainable, and therefore our judgment must be for the plaintiff.
Judgment for the plaintiff.
APPORTIONMENT, SUSPENSION, AND EXTINGUISHMENT.
Lit. $ 222. Also, if a man hath a rent charge to him and to his heirs issuing out of certain land, if he purchase any parcel of this to him and to his heirs, all the rent charge is extinct, and the annuity also; because the rent charge cannot by such manner be apportioned. But if a man, which hath a rent service, purchase parcel of the Tand 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 according to the value of the land. But if one holdeth his land of his lord by the service to render to his lord yearly at such a feast a horse, a golden spear, or a clove, gilliflower, and such like; if in this case the lord purchase parcel of the land, such service is taken away ; because such service cannot be severed nor apportioned.
Co. Lit. 147 b. The reason of this extinguishment is, because the rent is entire, and against common right, and issuing out of every part of the land, and therefore by purchase of part it is extinct in the whole, and cannot be apportioned. But by act in law it may, as hereafter shall be said.
I "A rent is an incorporeal hereditament, and susceptible of the same limitations as other hereditaments. Hence it may be granted, or devised, for life, or in tail, with remainders or limitations over. But there is this difference between an entail of Tands and an entail of rent : that the tenant in tail of lands, with the immediate reversion in fee in the donor, may, by a common recovery, bar the entail and the reversion; whereas the grantee in tail of a rent de novo, withont a subsequent limitation of it in fee, acquires, by a common recovery, only a base fee, determinable upon his decease, and failure of the issues in tail ; but if there is a limitation of it in fee, after the limitation in tait, the recovery of the tenant in tail gives him the fee simple. This was resolved in the cases of Smith v. Farnaby, Carter, 52 ; Sid. 285, and 2 Keb. 29, 55, 84 ; Weckes v. Peach, 2 Lutw. 1218, 1224 ; and Chaplin v. Chaplin, 3 P. W’ms. 229. The reason of this difference is, that it would be unjust that the conveyance of a grantee of a rent should give a longer duration or existence to the rent, than it had in its original creation. It is true, that the barring of an estate tail in land is equally contrary to the intention of the grantor. But a rent differs materially from land. The old principles of the feudal law looked upon every modification of landed property, which was considered to be against common right, with a very jealous eye. Now, a rent-charge was supposed to be against common right, the grantee of the rent-charge being subject to 708 APPORTIONMENT, SUSPENSION, AND EXTINGUISHMENT.
Co. Lit. 148 a. But yet a rent charge by the act of the party may in some case be apportioned. As if a man hath a rent charge of twenty shillings, he may release to the tenant of the land ten shillings or more or Tess, and reserve part; for the grantee dealeth only with that which is his own, viz., the rent, and dealetin not with the land, as in case of purchase of part. And so was it holden in the Common Place, Hil. 14 Eliz., which I myself heard and observed. So if the grantee of an annuity or rent charge of twenty pound grant ten pound parcel of the same annuity or rent charge, and the tenant attorn, hereby the annuity or rent charge is divided.
Id. So likewise if the lessor granteth part of the reversion to a stranger, the rent shall be apportioned; for the rent is incident to the reversion. So it is if tenant by: knight's service by his last will and testament in writing deviseth the reversion of two parts of the lands, the devisee shall have two parts of the rent.
Co. Lit. 148 b. This is intended of a fee simple, for if there be a lord and tenant of forty acres of land by fealty and twenty shillings rent, if the tenant maketh a gift in tail, or a lease for life or years, of parcel thereof to the lord, in this case the rent shall not be apportioned for any part, but the rent shall be suspended for the whole ; for 2 rent service (saith Littleton) may be extinct for part, and apportioned for
no feudal services, and being a burden upon the tenant who was to perform them. Upon this principle the law, in every instance, avoided giving by implication a continuation to the rent, beyond the period expressly fixed for its continuance. Thus if a tenant in tail of land die without issue, his wife is entitled to dower for ber life out of the land, notwithstanding the failure of the issue ; but the widow of a tenant in tail of rent is not entitled to her dower against the donor. So if a rent is granted to a man and his heirs generally, and he dies without an heir, the rent does not escheat, but sinks into the land. Tt is upon this principle that when there is not a limitation over in fee, a tenant in tail of rent acquires, by his recovery, no more than a base fee. But if there is a limitation in fee, after the particular limitation in tail, the grantor bas substantially limited the rent in fee; and therefore, it is doing him no injustice that the recovery should give the donee, who suffers it, an estate in fee simple. The case of Chaplin v. Chaplin was, that Lady Hanby, the grandmother of Porter Chaplin, being seised in fee, conveyed divers Tands, to the use and intent that the trustees named in the deed, should receive and enjoy a rent-charge of £30 per annum to them and their heirs, with power to distrain for it, and to enter and hold the land on nonpayment for forty days; and then the rent was declared to be to the use of Porter Chaplin in tail : remainder to the use of the same person who had the land in fee. It is stated to have been afterwards disclosed to the court, that the legal estate of the rent in fee was in the trustees. But it is worthy of the attention of the reader, that it was not necessary that any new matter shonld be aılduced to disclose this to the court, as it appears on the face of the deed ; for a conveyance to A. and his heirs, to the use and intent that B. and his heirs may receive a rent out of the estate, gives B. the legal fee of the rent; so that if it is afterwards declared, that B. and his heirs are to stand seised of the rent to uses, the intended cestuis que use take only trust or equitable estates. If, therefore, it is intended to limit a rent in strict settlement, it is necessary to do it by way of grant at common law, to some person and his heirs, to the uses intended to be limited. This gives the grantee the mere seisin to the uses, and the uses declared upon it will be executed by the Statute. See note on uses 271, b. VII. 3." – Butler's note to Co. Lit. 298 a.
the rest; but a rent service cannot be suspended in part by the act of the parts, and in esse for other part. So it is if the lessor enter upon the lessee for life or years into part, and thereof disseise or put out the lessee, the rent is suspended in the whole, and shall not be apportioned for any part. And where our books speak of an apportionment in case where the lessor enters upon the lessee in part, they are to be understood where the lessor enters lawfully, as upon a surrender, forfeiture, or such like, where the rent is lawfully extinct in part.
Lit. $ 224. Also, if a man hath a rent charge, and his father purchase parcel of the tenements charged in fee, and dieth, and this parcel descends to his son who hath the rent charge, now this charge shall be apportioned according to the value of the land, as is aforesaid of rent service ; because such portion of the land purchased by the father cometh not to the son by his own fact, but by descent and by course of law.
THRE'R v. BARTON.
[Reported Moore, 94 pl. 232.] A man made a lease for a hundred years, and the lessee made a lease for twenty years, rendering rent, with a clause of re-entry; and afterwards the first lessor granted the reversion in fee, and attornment was had accordingly. The grantee purchases the reversion of the term ; he will have neither the rent nor the re-entry, for the reversion of the term, to which it was incident, is extinct in the reversion in fee. And this was adjudged at the Assizes between Lord Thre’r and Barton who was lessee, as Stephens relates. And Plouden and others agreed to it; but Popham took this diversity': If a man makes a lease for life, rendering rent, and the lessee for life makes a lease for years rendering rent, and afterwards the lessee for life surrenders to him in the reversion in fee, he will not have the rent of the lessee for years, nor an action of waste, because the tenant for life who surrendered could not punish the waste in this case. So if the tenant purchases the reversion in fee, he will not have an action of waste during his own life. But otherwise is it if a man makes a lease for years rendering rent, and afterwards grants the reversion for life, or for years, and he in reversion surrenders to him, he will have the rent or waste, because it was once a rent incident to the reversion, and so it was not in the other. . But Plovden and Ipseley said that all is one as to the action of waste.
CIBEL AND HILL'S CASE.
COMMON PLEAS. 1588.
[Reported 1 Leon. 110.) A LEASE was made of a certain house and land rendering rent, and another sum, Nomine poenae ; and for the Nomine ponce the lessor u brought an action of debt. The lessee pleaded, that the lessor bad
entered into parcel of the land demised, upon which they were at issue, and found for the plaintiff; and now the lessor brought debt for the rent reserved upon the same lease; to which the defendant pleaded, ut supra, scil. an entry into parcel of the land demised: And issue was joined upon it; And one of the jury was challenged, and withdrawn, because he was one of the former jury: And the issue now was, whether the said Cibel, the lessor, expulit et amovit et adhuc extra tenet, the said Hills. And to prove the same, it was given in evidence on the defendant's part, that upon the land demised there was a brickkiln, and thereupon a little small cottage, and that the lessor entered, and went to the said cottage and took some of the bricks and untiled the said cottage : But of the other side it was said, that the lessor had reserved to himself the bricks and tiles aforesaid, which in truth were there ready made at the time of the lease made, and that he did not untile the brick-kiln house, but that it fell by tempest, and so the plaintiff did nothing but came upon the land to carry away his own goods : And also he had used the said bricks and tiles upon the reparation of the house. And as to the extra tenet, which is parcel of the issue, the lessor did not continue upon the land, but went off it, and relinquished the possession : But as to this last point, it seemed to the court, that it is not material if the plaintiff continued his possession there or not, for if he once doth anything which amounts to an entry, although that he depart presently, yet the possession is in him sufficient to suspend the rent, and he shall be said, extra tenere the defendant the lessee, until he hath done an act which doth amount to a re-entry. And afterwards to prove a re-entry, it was given in evidence on the plaintiff's part, that the defendant put in bis cattle in the field where the brickkiln was, and that the cattle did estray into the place where the defendant had supposed that the plaintiff had entered. And by ANDERSON, Justice, the same is not any re-entry to revive the rent, because they were not put into the same place by the lessee himself, but went there of their own accord. And such also was the opinion of Justice PERIAM.
CARREL V. READ.
(Reported Cro. El. 374.) COVENANT. Lessee for years covenants to drain such water out of land before such a day. He pleads, that before the day the lessor entered, and continued in possession until after the day: and it was thereupon demurred. — Adjudged to be no plea, because it is a collateral act to be done by him ; unless he had said, that the lessor held him out, and disturbed him to do it.
CLUN v. FISHER.
[Reported Cro. Jac. 309.) DEBT for fifty pounds rent reserved upon a lease for years. The case upon demurrer was, That Anne Breedon, tenant for life, made a lease for fifty years, if she lived so long, rendering annually during the term two hundred pounds quarterly, at Michaelmas, Christmas, the Annunciation, and Midsummer, by equal portions, or within thirteen weeks after every of the said feasts. She dies after Michaelmas, and within the thirteen weeks, and for the rent due at Michaelmas before her death this action was brought; and all this matter being disclosed in the count, the defendant demurred in law.
The sole question was, Whether this rent were due, she dying after Michaelmas, and before the end of the said thirteen weeks?
It was argued by Hedley for the defendant, and Yelverton for the plaintiff; and, after argument at the bar,
FLEMING, Chief Justice, and WILLIAMS delivered their opinion, that this rent was not due ; for the reservation being in the disjunctive at the four feasts, or within the thirteen weeks after every of the said feasts, nothing is due until the end of the thirteen weeks, but there is only an election given to the lessee to pay it at the feasts, if he will, but until the end of the thirteen weeks he cannot demand it by distress or action of debt, and therefore is not any duty; and if the ancestor make such a lease, and die after Michaelmas, before the end of the thirteen weeks, this rent shall go to the heir, and not to the executor: and if the lessor release all actions and demands after Michaelmas, before the end of six months, this rent is not released; but peradventure by a particular release, with precise words, it may be released: and if the lessee make a forfeiture, and the lessor enter therefore in the interim, betwixt Michaelmas and the end of the thirteen weeks, no rent is due to the lessor. And there is a difference betwixt this case and the case of Barwick v. Foster, Cro. Jac. 233, where a lease made for twenty