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a gift in fee tail, the remainder over in fee; or a 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 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, fuci. 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.
Lit. $ 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, not 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 hy 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
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 seck, 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 assize 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.
LIT. $ 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
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 had 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, bim, he shall have an assise of novel disseisin. And so it is if a man grant hy 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. $ 236. 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 dis. tress 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. Re. plevin 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 tene. 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 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 fore. stalling or menacing, he that bath 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
rent is reserved, for that he is privy to the lease, and not a stranger to the lease, &c.
Lit. § 565. Also, if the lord of a rent service grant the services to another, and the tenant attorn by a penny, and after the grantee distrain for the rent behind, and the tenant make rescous ; in this case the grantee shall not have an assize for the rent, but a writ of rescous, because the giving of the penny by the tenant was not but by way of attornment, &c. But if the tenant had given to the grantee the said penny as parcel of the rent, or a half-penny or a farthing by way of seisin of the rent, then this is a good attornment, and also it is a good seisin to the grantee of the rent; and then upon such rescous the grantee shall have an assize, &c.
CASE OF LORINGE'S EXECUTORS.
1352. (Reported Year Book 26 Edw. III. 10, pl. 5.] The executors of W. L. brought a writ of debt against one T., and demanded one hundred marks of silver. And they declared that one S., late Earl of Kent, was seised of the moiety of the manor of L., and granted an annual rent of one hundred marks, to be taken from the said manor, to W., a testator, for the term of his life ; and that the said W. was seised of the said rent by the hand of the Earl ; and afterwards the said moiety of the manor came into the possession of the said T., in whose time, and in the life of their testator, the said annuity was detained, and was in arrear &c. to the amount of the sum which is in demand, wherefore they often, as executors, have come to the said T., tenant of the moiety of the manor charged, and prayed him that he would pay them. And they showed the will and the deed of grant of the annuity.
Birt. In the will their testator is named W. Loringe, Knight, and in the writ they name themselves executors of W. L., without Knight, so there is a variance from the will. Judgment of the writ.
And because the writ agreed with the deed of annuity in this point, and they did not deny that it was all the same person, the writ was adjudged good by WILBY (J.?].
Birt. To this writ brought against T. as against the tenant of the land charged, we say that we have nothing, and never had, save in the right of our wife, A. by name ; who is not named in the writ. Judgment of the writ.
Thorpe. Sir, we do not acknowledge what you say, but you see well how this is our writ of debt, and how after the death of our testator that which was an annual rent in his life is turned into the nature of debt, which debt he detains, and inasmuch as he does not deny that be is tenant of the land charged, in which case we understand that
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although A. was dead, we should recover against her executors; where. fore our writ is good against him ; for if I let lands for a term of years to a man and his wife, rendering me a certain rent, yet after the term I shall have a writ of debt against the husband alone. Wherefore &c.
And afterwards it was said by the court that the writ was good.
Birt. Where he has declared that the annuity was in arrear for fourteen years in our time, we say that we have never had anything in this land, save by reason of coverture, as in the right of A. our wife, who as long as she was sole, held for four years of the said fourteen years, so that we have never held the said land but for ten years, and that in the right of our wife not named in the writ. Judgment of the writ.
Thorpe. As to the four years, your plea is to the action, that you ought not to be charged with this debt. Wherefore consider what you shall answer to the remainder.
Momb. Your writ is brought against us alone, and you have de. manded an entire rent, and part of the years with which you have charged us, our wife was sole seised of the tenements, wherefore you ought not to charge us ; so for that time our wife should be named in the writ, and this writ of debt cannot abate in part, if it does not abate in whole. Wherefore &c. And afterwards the parties took a day over by prayer of parties, and the writ was affirmed by prayer of parties &c.
St. 32 HEN. VIII. c. 37. — Forasmuch as by the order of the common law, the executors or administrators of tenants in fee-simple, tenants in fee-tail, and tenants for term of lives, of rents services, rent charges, rents secks, and fee-farms, have no remedy to recover such arrearages of the said rents or fee-farms as were due unto their testators in their lives, (2) nor yet the heirs of such testator, nor any person having the reversion of his estate after his decease, may distrain, or have any lawful action to levy any such arrearages of rents or feefarms, due unto him in his life as is aforesaid; (3) by reason whereof, the tenants of the demean of such lands, tenements or hereditaments, out of the which such rents were due and payable, who of right ought to pay their rents and farms at such days and terms as they were due, do many times keep, hold and retain such arrearages in their own hands, so that the executors and administrators of the persons to whom such rents or fee-farms were due, cannot have or come by the said arrearages of the same, towards the payment of the debts and performance of the will of the said testators : (4) For remedy whereot, be it enacted by the authority of this present Parliament, That the executors and administrators of every such person or persons, unto whom any such rent or fee-farm is or shall be due, and not paid at the time of his death, shall and may have an action of debt for all such arrearages, against the tenant or tenants that ought to have paid the said rent or fee-farms so being behind in the life of their testator, or against the executors and administrators of the said tenants ; (5) and also furthermore, it shall be lawful to every such executor and administrator of any such