1. THUS far, the subjects treated of in this work, have referred, chiefly, to property of a corporeal nature, like lands or tenements, something of which livery of seisin, as heretofore explained, might be made. But enough must have presented itself in the course of these investigations, to prepare the reader to pursue a similar course of inquiry in respect to another species of property which, though relating to lands and embraced under the general designation of realty, will be found to differ, in many essential particulars, from that which has been hitherto described. The property now to be spoken of, consists of an intangible, incorporeal interest in, or right to or out of lands and tenements, of a nature sufficiently permanent to have applied to it, the same idea of duration or quantity of ownership or estate, as has, thus far, been applied to corporeal inheritances.

Thus A may have an estate, in possession, in lands during his [*4] *life; B may have a right to these on A's death, or may have it upon condition that he survives A, or that A die without children. But he cannot touch or handle this interest, and if he sells it, he can only pass it by deed, since he has no present seisin which he can deliver to the purchaser. Here A has a corporeal and B an incorporeal property in the same land, though B's interest, in such a case, so far as it is a reversion or a vested remainder, is considered as of a mixed nature, at one time incorporeal, but capable of becoming corporeal by being united with the possession; at the death of A.1 Hereditaments may, on the other hand, be purely incorporeal, as, for example, what are called rights of common, or rights of way appurtenant to other lands. Thus A may own Blackacre, and have a right to go upon B's adjacent land to cut trees to burn on his own, or to pass across B's land to reach his own. Now this is, simply, a right which he cannot sell and deliver over to a stranger, separate from the land to which it is appendant, — nothing, in other words, corporeal or tangible. And yet it may be an inheritable right which will survive to his heirs, and in which he may have

1 Wms. Real Prop. 197.

an estate in fee-simple, or it may be for his life only, in which case he would have a life estate in it, in the same manner as he might have in corporeal property. But, in no event can an incorporeal hereditament like this become a corporeal one.1 Property like this, is not, properly speaking, regarded as a tenement, nor is it land, but being something that is of a permanent nature and may be inherited, it is called a hereditament.2

2. Blackstone enumerates ten of the purely incorporeal hereditaments. But as neither titles, advowsons, commons, as understood in England, offices, dignities, corodies, nor pensions are known to the American law as things of which an estate can be predicated,3 and as annuities are but claims of a personal #nature, the [*5] only classes of incorporeal real property of which it is now proposed to treat, are Rents, Franchises, and Easements.

3. Rent is defined to be a right to the periodical receipt of money or money's worth in respect of lands which are held in possession, reversion, or remainder, by him from whom the payment is due.5 As technically defined, it is something which a tenant renders out of the profits of the lands or tenements which he enjoys."

4. There was, before the statute of Quia Emptores, a custom for the owner of the feud on parting with his entire estate, to reserve to himself and his heirs, by way of perpetual periodical service, or an equivalent thereto, by way of rent or return, upon a failure to perform which on the part of the tenant, the owner of the rent might distrain for the same. This right of distress grew out of the tenure existing between the grantor and tenant, the latter owing fealty as well as rent for the estate. This periodical render was called a rent service. But as the statute of Quia Emptores abolished all tenure between a grantor in fee and his grantee, by destroying the possibility of reversion, it operated to extinguish the fee in the owner of such a

1 Wms. Real Prop. 265.

22 Bl. Com. 17; Prest. Est. 13, 14. Burton, however, in his Compendium, applies the term "tenement" to incorporeal as well as corporeal hereditaments. Burt. Real Prop. §§ 4, 40.

8 By a law of Mass. 1660, no cottage or dwelling-house was to be admitted to the privilege of commonage for wood, timber, and herbage, except "by consent of the town." See Col. Laws, 196; Thomas v. Mansfield, 10 Pick. 367.

Wms. Pers. Prop. 165.

5 Burt. Real Prop. § 1050.

6 Co. Lit. 142 a; Watk. Conv. 273.

rent.1 But when there is a reversion, as fealty is always due from the tenant to the reversioner, a rent from a tenant for years to his reversioner is still a good rent service, and was treated of, accordingly, under the head of Leases and Estates for Years, in a former chapter.2

5. It is not of rent service, as above explained, that it is proposed to treat in this chapter, but of rents which, from their duration and transmissible and inheritable quality, come under the proper designation of incorporeal hereditaments. These are rents charge and rents seck, or what answer, in many cases, to both of them, fee-farm rents.3 "There are," say the court inv. Cooper," two ways of creating a rent, the owner either grants a rent out of it, or grants the lands and reserves a rent. There is no such thing as a rent seck, rent service, or rent charge issuing out of a term for years." 4 Thus if an

owner of land in fee grants it to another in fee, and in his deed [*6] reserves an *annual sum of money, or something, money's

worth, to be paid by the grantee or his heirs or assigns to him and his heirs, or if, being owner in fee of the land, he grants to another and his heirs an annual sum to issue out of his said lands forever, these annual payments thus granted or reserved are called rents, although not strictly any thing in the way of profits reserved or to be rendered out of the thing granted. For this reason, while the common law gave to the reversioner, in case of a rent service, the remedy of distress for its recovery, if unpaid, there was no such right attached to rents granted or reserved as above supposed, unless it was so stipulated in the deed or indenture by which the rent was created. If the owner of the rent was empowered at its creation, to enforce its payment by distress, it was considered as charged upon the land, and therefore called a rent charge. If no right of distress was attached to the rent at its creation, it was called a rent seck (siccus), or dry rent, being a mere right to recover the rent, without any right to seize upon the property out of which it was supposed to issue or be derived. By the statute 4 Geo. II. ch. 28, § 5, a right of distress,

1 Smith, Land. & Ten. 90; 3 Prest. Abstr. 54; Burt. Real Prop. §§ 1053, 1054.

2 Smith, Land. & Ten. 90; Com. Dig. Rent, ch. 1; ante, Vol. I. ch. 10.

8 3 Prest. Abst. 54.

4

- v. Cooper, 2 Wils. 375; Langford v. Selmes, 3 Kay & J. 229.

See 5

Bligh, N. s. 63.

6 Watk. Conv. 273, Coventry's note, 276-8; 3 Prest. Abst. 55.

62 Bl. Com. 42; Cornell v. Lamb, 2 Cow. 652, 659.

7 Wms. Real Prop. 270; 2 Bl. Com. 42; Cornell v. Lamb, 2 Cow. 652, 659.

*

whether for rent seck or rent charge, was given, so that, by the English laws, the distinction between the two is substantially abrogated.1 In New York, a rent reserved upon a conveyance in fee, is a rent charge, and not a rent service.2

6. Before proceeding to speak further of what may be properly called fee-farm rents, which include both rents charge and rents seck,3 it should be stated, that if, in any of the States, the statute of Quia Emptores has not been adopted as a part of their common law, rents service in fee as well as for terms of years may still be [*7] in use. This is the case in Pennsylvania, and many cases have arisen there, where the rent granted or reserved was in fee, and if reserved, has been held to be a rent service and not a rent charge, and where, as was the case at common law, a release of a part of the land, out of which the ground rent, which had been thus reserved issued, discharged the rent pro rata, only.1

7. The nature and general incidents of the rents mentioned, regarded as interests in land of which estates may be predicated, are so nearly identical (except in the matter of enforcing them), that it is proposed to consider rents charge and seck together, under the term of fee-farm rents. These rents may be created by reservation, by limitation of a lease, or by grant,5 by bargain and sale, lease and release, or covenant to stand seized," which, as the reader will hereafter see, is, substantially saying, in any form of conveyance by which lands themselves may be conveyed. Where a rent is granted, it is,

-

NOTE. There was, under the feudal law, what was called a quit-rent, which was a fixed sum payable to the lord as seignor of a manor, by a tenant, upon a composition made with the lord, who gave up therefore his claim for indefinite services due from the tenant. 2 Bl. Com. 96; Marshall v. Conrad, 5 Call, 364, 398.

1 Wms. Real Prop. 270, n.

2 Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer v. Chadwick, 22 N. Y. 33 s. c. 24 Barb. 333; Van Rensselaer v. Smith, 27 Barb. 134, 139.

Scott v. Lunt, 7 Pet. 596, 606; Bradbury v. Wright, Dougl. 627, n.; Co. Lit. 143 b, note 235.

Ingersoll v. Sergeant, 1 Whart. 337, where the subject is very elaborately examined. Franciscus v. Reigart, 4 Watts, 98, 116; 2 Sharsw. Bl. Com. 42, n. The statute of Quia Emptores forms a part of the common law of N. York. Van Rensselaer v. Hays, 19 N. Y. 68.

53 Prest. Abst. 53.

6 Watk. Conv. 281; 3 Cruise, Dig. 273.