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the grant of the seignory or of a rent, or of the donee in tail, or tenant for life or years, to a grant of a reversion or remainder made to another.” Co. Lit. 309 a. Stat. 4 Ann. c. 16, § 9, appears to have been intended to meet both parts of this definition. It enacts that - all grants or conveyances " " of any manors or rents, or of reversion or remainder of any messuages or lands, shall be good and effectual, to all intents and purposes, without any attornment of the tenants,” “ if their attornment had been had and made.” The Statute, therefore, in terms, creates the same privity, between the grantee of the rent and the tenant of the lands out of which it issues, as an attornment wonld have done if the tenant had actually attorned to the grantee. The defendant's counsel in Allen v. Bryan was, therefore, well justified in supposing that case to be governed by Robins v. Cox. To these it may be added that in Marle v. Flake, 3 Salk. 118, it is stated to have been adjudged “that where the lessor assigned his rent without the reversion, the assignee (if the tenant agrees) may maintain an action of debt for the rent, because the privity of contract is transferred.” There is also the case of Clarke v. Coughlan, 3 Irish Law Rep. 427, which is an authority on all fours with the present case.

That was a case of an assignment of the whole interest at a rent: and the very learned persons who decided that case, after a full investigation of the authorities, came to the conclusion that the action was maintainable under circumstances which were not attempted to be distinguished from those in the case now before us. We are satisfied, therefore, upon

the authorities, that the plaintiff is entitled to our judgment on the question arising on the third plea.

We think also that no defence is shown on the fifth plea. The rent issued out of the things demised, that is, the mines and minerals ; and could not have issued out of the easement to use the railway in common with others on the land, not parcel of the demise ; and we think that the preventing the defendant from using, or obstructing him in the enjoyment of, the easement is not such an eviction from the thing demised or any part of it, as will amount to an answer to the claim of rent. Our judgment on both the demurrers is for the plaintiff.

Judgment for the plaintiff.

THOMAS v. SYLVESTER.

QUEEN'S BENCH. 1873.

[Reported L. R. 8 Q. B. 368.] DECLARATION : That the plaintiff, being seised in fee of certain messuages and hereditaments situate, &c., by indenture bearing date the 15th of January, 1870, made by and between the plaintiff of the one part, and one David Cotter of the other part, granted and conveyed the messuages and hereditaments (subject to and charged and chargeable

with the payment forever to the plaintiff, his heirs and assigns, of a certain yearly rent-charge of £2 88. 6d. payable out of each of the said messuages and hereditaments on the 24th of June and the 21st of December in each year), unto and to the use of Cotter, his heirs and assigns ; and Cotter in the indenture covenanted for himself, his heirs, executors, and administrators, that he, his heirs, executors, administrators, or assigns, would pay unto the plaintiff, lis heirs or assigns, the yearly rent-charge on the days aforesaid. That afterwards all the estate of Cotter in the premises became vested in the defendants; and while the estate was so vested in the defendants, to wit, on the 24th of June, 1871, the rent-charge accrued due and became and was payable from the defendants to the plaintiff'; yet the defendants did not pay the same, and the same remains wholly due and unpaid.

Demurrer and joinder in demurrer. H. T. Cole, Q. C., in support of the demurrer. C. Boven, contra. BLACKBURN, J. I think the only question which it is necessary to decide is, whether the plaintiff, the grantee of the rent-charge, is entitled to compet the terre-tenants to pay it by a personal action. I may remark that the indenture may be regarded as containing a grant in fee of a rent-charge under the Statute of Uses, and that a rent having been duly created, debt will lie. Under the old law the remedy to recover a freehold rent was by real action, and as long as the freehold continued, debt could not be maintained; but when the freehold estate came to an end, then, inasmuch as a real action could no longer be brought, debt would lie at the suit of the person entitled to the rentcharge. Thus, where a rent was granted for life the only remedy was by real action, but when the life bad dropped, debt was maintainable. Leving's Case, cited in a note to Fitzherbert, Natura Brevium, p. 121, is a distinct authority that where a rent-charge for life had been created, issuing out of a manor which was afterwards conveyed to an assignee, and the rent-charge became in arrear, an action of debt would lie against the assignee of the manor upon the expiration of the life estate, when, according to the old law, a real action could no longer be brought to recover the arrears. Leving's Case is important, as showing that the action of debt is maintainable against an assignee, and it is precisely in point in the present case, where the plaintiff' seeks to recover the rent-charge against the assignees of the land. If the present case had occurred before the passing of 3 & 4 Wm. 4, c. 27, the rentcharge being in fee, the plaintiff would have been driven to a real action

But the Legislature having by that Act abolished real actions, we have to consider the question, whether we must not apply the principle of the common law to the present case.

The principle was, that, when the estate for life had terminated, an action of debt for arrearages would lie. It seems to me to follow, upon a similar principle, that when the real action has been abolished, the grantee of a rent-charge in fee may maintain an action of debt against the terre

to recover it.

VOL. 11.

-45

tenant; and this was the opinion of Pollock, C. B., in Varley v. Leigh, 2 Ex. 446 ; 17 L. J. Ex. 289, though that opinion was not necessary to the decision, and Rolfe, B., did not concur. The authorities bronght before us, however, were not cited. I think that, real actions being now abolished, debt will lie ; and that the authorities show that it will lie against the assignee of the land as well as against the original grantor.

This is not a question of a covenant running with the land, but whether, where there is a rent in fee issuing out of land, the owner of the rent may not sue the terre-tenant in debt, although the terretenant was not the original grantor. It seems to me that, according to authority, reason, and justice, he may maintain the action.

QUAIN, J. I am of the same opinion. The distinction in the old books appears to be this : If a rent were granted for years, debt would lie, but if it were granted in tail, or for life, debt would not lie for arrears until after the freehold had determined; but when the freehold had determined, then debt would lie, and the reason assigned was that the freehold remedy must be pursued, because the law did not suffer a real injury to be remedied by an action merely personal. Putting aside the remedy by real action, would debt have lain against an assignee who is in possession of the same estate in the land as the grantor of the rent? That appears to be decided in Sir W. Loringe's Case, cited in Ognel's Case, 4 Co. Rep. at f. 49 b, thus : A man was grantee for life of a rent out of a moiety of a manor, of which moiety a man was seised in right of his wife; the rent was in arrear when the grantee died, and the executors brought an action of debt against the husband only for the arrears. It was resolved: 1. That by the death of the grantee for life, the grant for life was turned into nature of debt. 2. Forasmuch as the husband took the profits of the land charged with the rent when it was arrear, he only, without his wife, should be charged with an action of debt." The action was against the person who is called the pernor of the land, provided he had the same estate as the grantor. I apprehend that the reason is that the land is the debtor, as is stated by Wilson, J., in Mills v. Auriol, 1 H. Bl. at p. 415. If a man comes into possession of land as tenant in fee, he is the pernor of the profits of the land, and was liable to a real action for the nonpayment of a rent-charge created by a former tenant in fee; if this be so, since real actions are abolished, an action of debt will lie.

I agree it is not necessary to go into the question whether the covenant runs with the land.

ARCHIBALD, J. I also agree in thinking there is no necessity to consider the question in what cases covenants run with the land. It seems to me to be a question of remedy. When we enter into the reasons why debt would not lie for the recovery of the arrears of a freehold rentcharge, it is clear that there was no oversight in abolishing real actions without providing for cases of this kind. The reason why debt did not lie was that the law did not suffer the right injured to be amended by

APPORTICNMENT, SUSPENSION, AND EXTINGUISHMENT. 707

an action merely personal. It is clear from Leviny'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.

SECTION II.

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 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 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.

other hereditaments,
remainders or limitations over.

fee in the donor, may, by

her A rent is an incorporeal hereditament, and susceptible of the same limitations as

Hence it may be granted, or devised, for life, or in tail, with

But there is this difference between an entail of lands and an entail of rent : that the tenant in tail of lands, with the immediate reversion in as the grantee in tail of a rent de novo, without a subsequent limitation of it in fee, ac

a common recovery, bar the entail and the reversion ; wherequires , by a common recovery, only'a base foe

, 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 the cases of Smith v. Farraby, Carter

, 52 ; Sid. 285, and 2 Keb. 29, 55, 84 ; Weckes

Chaplin, 3 P. Wms. 229. The reason should give a longer duration or existence to the rent, than it had in its original creaintention of the grantorthe Bunt ni rent differs materially from land. The old principles

v. Peach, 2 Lutw. 1218, 1224 ; and Chaplin v.

common right, the grantee of the rent-charge being subject to

of the feudal law looked upon every modification of landed property, which was con:

supposed to be against

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 less, and reserve part; for the grantee dealeth only with that which is his own, viz., the rent, and dealeth 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 a 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 her 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 it 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. It 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 has 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 lands, 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 should be adduced 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 bis 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. Jf, 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.

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