4 & 5 Will. 4, c. 22, s. 1. Recital of statute APPORTIONMENT OF RENTS AND PERIODICAL 4 & 5 WILLIAM IV. c. 22. An Act to amend an Act of the Eleventh Year of King THE STATUTE 11 GEO. 2, c. 19, s. 15, RECITED AND EXTENDED. WHEREAS by an act passed in the eleventh year of the reign of his Majesty King George the Second, intituled "An Act for the more effectual securing the Payment of Rents, and preventing Frauds by Tenants," it was enacted, that where any tenant for life should happen to die before or on the day on which any rent was reserved or made payable upon any demise or lease of any lands, tenements or hereditaments which determined on the death of such tenant for life, the executors or administrators of such tenant for life should and might, in an action on the case, recover of and from such undertenant or undertenants of such lands, tenements or hereditaments, if such tenant for life die on the day on which the same was made payable, the whole, or if before such day then a proportion of such rent according to the time such tenant for life lived of the last year or quarter of a year, or other time in which the said rent was growing due as aforesaid, making all just allowances, or a proportionable part thereof respectively: and whereas doubts have been entertained whether the provisions of the said act apply 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 and prevented by the said act; and it is therefore desirable that such doubts should be removed by a declaratory law; and whereas by law, rents, annuities and other payments due at fixed or stated periods are not apportionable (unless express provision be made for the purpose), from which it often happens that persons (and their representatives) whose income is wholly or principally derived from these sources by the determination thereof before the period of payment arrives, are deprived of means to satisfy just demands; and other evils arise from such c. 22, s. 1. Rents reserved on ing on the death of the person (though not rents, annuities and other payments not being apportiouable,. 4 & 5 Will. 4, which evils require remedy; be it therefore enacted and declared, that rents reserved and made payable on any demise or lease of lands, tenements or hereditaments which have been leases determinand shall be made, and which leases or demises determined or shall determine on the death of the person making the same (although such person was not strictly tenant for life thereof), or on the death of the life or lives for which such person was entitled to such hereditaments, shall, so far as respects the rents reserved by such leases, and the recovery of a proportion thereof vie, to be conby the person granting the same, his or her executors or admi- the provisions of nistrators (as the case may be), be considered as within the provisions of the said recited act (a). (a) In all cases of apportionment occurring after the 1st August, 1870, reference must be made to the act 33 & 34 Vict. c. 35 (post). The following note refers to the law before that date. making them strictly tenant for life), or on tenant pur autre the death of sidered as within recited act. Before the statute 11 Geo. 2, c. 19, if the lessor tenant for life died within Law before the half year, at the end of which rent was due, the rent reserved upon a 11 Geo. 2, c. 19. lease not made in execution of a power was lost, because the representatives could not recover a part. The principle was, that a contract cannot be apportioned, and that under a lease, with a periodical reservation of rent, the contract for the payment of each portion is distinct and entire. (1 Swanst. 338, n.) In some cases the law qualified this principle; but in no case with respect to time (Co. Litt. 292 b; 10 Rep. 128); and courts of equity did not admit an apportionment of rent in respect of time. (Jenner v. Morgan, 1 P. Wms. 392; Hay v. Palmer, 2 P. Wms. 502; Bentham v. Alston, 2 Vern. 204.) The statute 11 Geo. 2, c. 19, s. 15, provided, that where a lessor tenant 11 Geo. 2, c. 19, for life should die before the rent day, his executors might recover from the s. 15. tenant a proportionate part of rent so growing due, making all just allowances. This statute was held to apply where leases had been made by a tenant in tail, which determined on his death, because not conformable to the statute 32 Hen. 8, c. 28, or on account of there being no issue inheritable under the entail; (Whitfield v. Pindar, cited 2 Br. C. C. 662; 8 Ves. 311; Paget v. Gee, Ambl. 198; 1 Swanst. 356;) and rent was apportioned between the representative of a tenant in tail, who died without issue, and the remainderman in tail. (Vernon v. Vernon, 2 Br. C. C. 659.) The same statute applied to those cases only where the lease was not binding on the remainderman or reversioner, and the rent would consequently have been lost both to him and the executor at common law. Therefore, before this act, if a tenant in fee made a lease, or tenant for life with a leasing power made a lease in conformity to it, and the lessor died in the interval between two periods of the rent being due, i. e. at any time before midnight of the rent day, the whole rent went to the heir or remainderman, and there could be no apportionment in favour of the executor. (1 Wms. Exors. 777, 6th ed.; Norris v. Harrison, 2 Madd. 268; 10 Rep. 127 b; Duppa v. Mayo, 1 Saund. 287; 1 P. Wms. 177; 2 Bl. R. 1075; 4 T. R. 173.) A., on his father's death, became tenant in tail in possession of estates, with remainder to his younger brother in tail. After the father's death a suit was instituted on behalf of A. and his younger brother (both of whom were infants), and a receiver of the rents of the estates was appointed. The younger brother was made a party to that suit, as being entitled to a portion out of the estates. A. died under twenty-one, and without issue. At his death the estates were held, as they had been ever since his father's death, by yearly tenants under parol demises. It was held, that A.'s administratrix was entitled to a proportionate part of the rents which were accruing due at his death. (Kevill v. Davies, 15 Sim. 466.) Where a lessee under a lease which determined at the death of the lessor, but was not within the stat. 11 Geo. 2, c. 19, paid over the whole rent for the current quarter, or other integral period, to the person entitled in remainder, such person would have 4 & 5 Will. 4, c. 22, s. 1. 4 & 5 Will. 4, c. 22, s. 1. Rent not appor- Composition for tithes. been compelled to account for a proportion of it to the lessor's represen tatives, though the latter had no remedy against the tenant for its recovery, on the principle that where a man pays money from equity and conscience, though not bound at law, such money shall be divided according to equity. (Paget v. Gee, Ambl. 198; Hawkins v. Kelly, 8 Ves. 308.) The recital of 4 & 5 Will. 4, c. 22, s. 1, has been referred to in determining the construction of the statute. (Brown v. Amyot, 3 Hare, 181; Wardroper v. Cutfield, 12 W. R. 458.) Lord Campbell, C. J., said this recital is strong evidence of what the law is, and the burden of proving that the legislature has fallen into a mistake is cast upon those who say so; but the rule thus laid down, instead of being liable to the imputation of error, is fortified by a long series of decisions. (Reg. v. Lords of the Treasury, 16 Q. B. 362.) Sect. 1 does not appear to provide for the case of a lease made by a tenant in fee to a tenant for life reserving rent; and therefore, where such a lease, having been granted before the passing of the act, determines by the death of the lessee for life between two rent days, the rent is lost and cannot be apportioned. The act in this section appears to contemplate two cases only; viz. the case of a lease determining on the death of the lessor, and the case of a lease determining on the death of the life for which the lessor was entitled. And even if the lease were granted after the passing of the act, it may be doubted whether such a case falls within the 2nd section. (1 Wms. Exors. 780, 6th ed.) Rent was not apportionable under 11 Geo. 2, c. 19, unless the lease determined on the death of the lessor. Therefore, where an equitable tenant for life, under a settlement of freehold leases for lives, obtained a renewal grant for lives to himself, and at his death the settled property was in the occupation of yearly tenants under parol demises from him; it was held that the rent were not apportionable. (Mills v. Trumper, L. R., 4 Ch. 320.) A tenant in fee demised lands from year to year. He died, having devised the lands for life. The devisee for life received rent, but did not live long enough to have a right to determine the yearly tenancy. It was held, that the administrator of the tenant for life was not entitled to an apportionment of the rent under the stat. 11 Geo. 2, c. 19, s. 15. (Botheroyd v. Woolley, 5 Tyrw. 522; 1 Gale, 66.) A tenant from year to year has a lease for a year certain, with a growing interest, during every year thereafter, springing out of the original contract and parcel of it, and therefore where such a tenancy has been created by an owner in fee of lands who devises them to one for life, with remainders over, the interest of the tenant from year to year, unless terminated by the devisee for life by some act inter vivos, does not determine upon the decease of the tenant for life; and consequently the rent then accruing due is not apportionable under sect. 15 of the 11 Geo. 2, c. 19. (Cattley v. Arnold, 1 J. & H. 660.) A testator devised realty to trustees on trust to permit his wife and her assigns to receive the rents for life, with remainders over. A receiver was appointed in an administration suit; and during the time he acted as such, the lands were held by tenants under parol agreements from year to year at rents payable half-yearly. In 1826 the widow died, and the receiver paid to her representative a sum of money representing rents which accrued between the rent day preceding the death and the day on which she died. The Lord Chancellor ordered her personal representative to refund the money to the remainderman. (Brown v. Candler, 9 L. J., Ch. 212.) Where a tenant for life with a leasing power granted leases from year to year, some by parol, some in writing but not conformable to the power, on his death, before the expiration of the leases, the rents were apportioned. (Clarkson v. Scarborough, 1 Swanst. 354; Symons v. Symons, 6 Mad. 207; Ex parte Smyth, 1 Swanst. 337.) A composition for tithes, received after the death of the incumbent by his successor, was apportioned with reference to the respective periods of enjoyment. (Aynsley v. Wordsworth, 2 Ves. & B. 331.) Although it had been held that if the successor continued to receive the next payment after the death of his predecessor, the former would only be accountable to the executors of the latter for such a portion as the value of the tithes, if paid in kind, accruing due between the last composition received by the late incumbent and his death would have amounted to. (Williams v. Powell, 10 East, 269.) Where a rector agreed with an occupier of land for a certain sum of money in lieu of tithes, payable yearly at Michaelmas, and the rector died about a month before Michaelmas, it was decreed, that the agreement having been determined by the death of the rector, the successor should be entitled to tithes in kind from such death, and the executor of the last incumbent to a proportion, according to the agreement, until the death of the testator. (Bunb. 294.) A rector, who took a composition for his tithes every Michaelmas, died in January, 1841. The new rector was collated in the following April, and, before harvest time, he employed a surveyor to value the tithes. The surveyor furnished him with a report, stating what he considered ought yearly to be paid by each of the occupiers as a composition in lieu of tithes. In August, the new rector required the respective occupiers to pay him, as a compensation for their tithes, the amount mentioned by the surveyor. The occupiers accordingly, in November, 1841, made their payments according to the surveyor's report, for the whole year, from Michaelmas, 1840, to Michaelmas, 1841. It was held, that the representative of the late rector was entitled to be paid by the new rector a proportion, according to the time which elapsed from Michaelmas, 1840, to the late rector's death, of the composition which existed in the late rector's lifetime. It seems that a composition for tithes is within the statutes 11 Geo. 2, c. 19, s. 15, and 4 & 5 Will. 4, c. 22. (Oldham v. Hubbard, 2 Y. & Coll. N. C. 209.) The provisions of 4 & 5 Will. 4, c. 22, have been extended to all rent- Tithe rent-charge. charges for which tithes have been commuted under 6 & 7 Will. 4, c. 71. (6 & 7 Will. 4, c. 71, s. 86. See Heasman v. Pearse, L. R., 8 Eq. 599.) Upon the accounts of the receiver a point was made, whether a tenant for Land tax. life, having died in the middle of the year, the land tax, quit-rents, and other charges, should be borne entirely by the estate of the son, the infant remainderman in tail, having actually become due after the death of the tenant for life, or whether there should be an apportionment: it was held, that however reasonable it might be to make a statute as to the apportionment of taxes between the tenant for life and the remainderman, the stat. 11 Geo. 2, c. 19, s. 15, had no reference to the case giving the tenant for life the benefit only as against the tenant, the under-lessee. (Sutton v. Chaplin, 10 Ves. 66.) In the case of money directed to be laid out in the purchase of land to be settled on a person for life, with remainder over, and in the meantime to be invested in government securities, the personal representatives of the tenant for life, who died before the half-yearly day on which the dividends became due, were not entitled to any apportionment, but the whole went to the person in remainder. (Sherrard v. Sherrard, 3 Atk. 502; Pearly v. Smith, Id. 280; S. C., Ambl. 279.) Thus, where by articles money was to be laid out in the purchase of lands, and in the meantime to be invested in South Sea Annuities, and the profits to go in the same way as the rent of the land would, and the person who would have been tenant for life of the land died in the middle of the quarter: it was held, that the dividends on those annuities being made payable by act of parliament on certain days, like rent, were not to be apportioned, being distinguishable from the case of money secured by mortgage, which may be called in at any time. (Wilson v. Harman, 2 Ves. sen. 672; Amb. 279. See Warden v. Ashburner, 12 Jur. 784; 17 L. J., Ch. 440.) By a will dated in 1795, an estate was devised to A. for life, with remainder to B. The estate was purchased by a railway company, and the purchase-money was paid into court and invested. Upon the death of A. it was held, that the money in court could not be considered as land for the purpose of 11 Geo. 2, c. 19, s. 15; and that, therefore, A.'s executors took no part of the dividend becoming payable after his decease. (Re Longworth's Estate, 1 K. & J. 1.) Where a sum of stock, the produce of lands belonging to an ecclesiastical corporation, was standing in court for the benefit of successive incumbents, S. NN Dividends on stock representing land. 4 & 5 Will. 4, c. 22, s. 1. 14 & 15 Vict. c. 25, s. 1. On determination of leases or Scotland. Ireland. it was held, on a petition by the incumbent for the time being for the payment of accumulations of dividends, that the case was not within 11 Geo. 2, c. 19, s. 15, or the 4 & 5 Will. 4, c. 22, and that there was no apportionment between the successive incumbents. (Ex parte The Bishop of London, 9 L. T., N. S. 606; 3 N. R. 246.) And where lands, subject to a settlement made in 1829, were taken by a company under the Lands Clauses Act, and the dividends ordered to be paid to a tenant for life, it was held that the dividends were not apportionable, whatever were the nature and date of the leases under which the lands were held by the tenants. (Re Lawton Estates, L. R., 3 Eq. 469.) On the other hand, where a widow became entitled to her dower, after which the lands were taken compulsorily by a public board, and one-third of the purchase-money paid into court, invested, and carried over to a separate account to answer the dower; it was held, that the widow's estate was entitled to an apportioned part of the dividends which accrued due after her death. Lord Romilly, M. R., said, that he must treat the money exactly in the same manner as if it had been land. (Harrop v. Wilson, 34 Beav. 166.) Where leases made by a tenant for life determine on his death, the lessee can hold until the expiration of the current year under 14 & 15 Vict. c. 25, s. 1, which is as follows:- Where the lease or tenancy of any farm or lands held by a tenant at rack-rent shall determine by the death or cesser of the estate of any landlord entitled for his life or for any other uncertain interest, instead of claims to emblements, the tenant shall continue to hold and occupy such farm or lands until the expiration of the then current year of his tenancy, and shall then quit upon the terms of his lease or holding in the same manner as if such lease or tenancy were then determined by effluxion of time or other lawful means during the continuance of his landlord's estate; and the succeeding landlord or owner shall be entitled to recover and receive of the tenant, in the same manner as his predecessor or such tenant's lessor could have done if he had been living or had continued the landlord or lessor, a fair proportion of the rent for the period which may have elapsed from the day of the death or cesser of the estate of such predecessor or lessor to the time of the tenant so quitting; and the succeeding landlord or owner and the tenant respectively shall, as between themselves and as against each other, be entitled to all the benefits and advantages, and be subject to the terms, conditions and restrictions to which the preceding landlord or lessor and such tenant respectively would have been entitled and subject in case the lease or tenancy had determined in manner aforesaid, at the expiration of such current year: provided always, that no notice to quit shall be necessary or required by or from either party to determine any such holding and occupation as aforesaid. The act 4 & 5 Will. 4 extends to Scotland. (Fordyce v. Brydges, 1 H. L. Ca. 1; 11 Jur. 157.) A Scotch tenant in tail, though in legal contemplation an owner or fiar, is nevertheless within this act. Lord Cranworth, C., had no doubt that the statute applies to a tenant in tail. The evil prior to this statute was, that if the tenant in tail died indebted and the rents were nearly accruing due, all those accruing rents would go to the successor. To remedy that evil the statute was passed. (Baillie v. Lockhart, 2 Macq. H. L. 258.) The Irish Act, 23 & 24 Geo. 3, c. 46, provided for the recovery of a proportion of rent, in every case where by the determination of the estate of the tenant for life, or the failure of the interest granted, there was no person who could recover. (Swan v. Bookey, 4 Ir. C. L. R. 582. See also as to this statute, Persse v. Persse, Alc. & Nap. 35; Kennan v. Brennan, 7 Ir. C. L. R. 268; Re Alexander, 4 Ir. Ch. R. 257.) The Irish Act, 23 & 24 Geo. 3, c. 46, and the act 4 & 5 Will. 4, c. 22 (so far as it affects the relation of landlord and tenant in Ireland); and the act 14 & 15 Vict. c. 25, s. 1 (so far as it affects Ireland), have been repealed by s. 104 of 23 & 24 Vict. c. 154, by which act fresh provisions for the apportionment of rent in Ireland were made. |