itself, the subject of the grant; where it is reserved, it is the lands that are the subject of the grant, and the rent comes in lieu of the land. 8. The estate in the rent may be a fee-simple, a fee-tail, for life, or for years. To constitute a fee-simple, the rent must be reserved to the grantor, his heirs and assigns, or, if granted, by like words of inheritance. If for years, it may be to one without words of limitation, or, as is often done, to one and his executors, administrators, and assigns. So the limitation may be to one in tail, with remainders over. The rent must, if created by reservation, be reserved to the feoffor, donor, or lessor, and not to a stranger,2 and this may [*8] be by deed poll.3 *But it may be created by grant to a stranger. A rent reserved upon a lease in fee with a clause of distress, is such an interest in land as may be levied upon for the debt of him who owns it, though, it seems, if it had been a rent seck it would not be the subject of such a levy.5 When a rent has been once granted or created, it is, itself, a subject of grant, afterwards, like other estates, and is descendible to heirs. It may be granted to one for life, with remainder over to another, though, at common law, an existing rent cannot be granted to take effect in futuro. But rents are expressly included in the Statute of Uses, 27 Hen. VIII. ch. 10, and may be conveyed to uses like land itself, as will be explained hereafter.9 9. Such a rent is subject to curtesy or dower like lands held in fee-simple or fee-tail,10 the requisite seisin being a seisin in law, as there can be none in fact. And for that reason, where one has been once seised or possessed of a rent, he cannot be disseised, as the possession always follows the right." The only mode of gaining a seisin of a rent, is by accepting or receiving some part thereof.12 From the general analogy that exists between fee-farm rents and lands, in re 1 Van Rensselaer v. Hays, 19 N. Y. 68; Watk. Conv. 280, 281; Wms. Real Prop. 275; 3 Cruise, Dig. 590; Tud. Lead. Cas. 177, 178. 2 Though Burton says a reservation of a sidered a grant to him. Burt. Real Prop. § 8 2 Dane, Abr. 452. 5 The People v. Haskins, 7 Wend. 463. rent to a stranger would probably be con1103; 3 Cruise, Dig. 278; Lit. § 346. Ingersoll v. Sergeant, 1 Whart. 337. 6 3 Prest. Abst. 53. 7 3 Cruise, Dig. 285; Van Rensselaer v. Hays, 19 N. Y. 68. 83 Cruise, Dig. 292. 10 3 Cruise, Dig. 291. 12 3 Cruise, Dig. 274. 93 Cruise, Dig. 293, 294; Watk. Conv. 281. spect to estates therein and their incidents, it is not deemed necessary to pursue the subject into all its details. But it may be proper to consider the purposes to which these rents usually are applied, and how far they prevail in this country. 10. They seem to have been first adopted for the purpose of carving out an interest in lands in favor of some one other than the heir, without disturbing the feud. But as it was in derogation of the feudal rights, the law did not annex the remedy for enforcing the payment of the rent, by distress, unless the parties specially agreed thereto. In modern days, rents are created for the purpose of [*9] raising jointures for married women, or making provision for heirs, by anticipation, to constitute them freeholders, or for raising money by way of annuity chargeable upon real estate, and the like. And between these and mortgages there are obvious distinctions, though the intended effect may be the same. In the case of a mortgage, for instance, there is a debt to be returned to the mortgagee. In that of a rent, there is an absolute purchase, and nothing is to be returned to the purchaser but what he is to receive, from year to year, out of the estate. And if the owner of the land extinguish the rent by the payment of a sum of money, it is in the nature of a purchase instead of a redemption.1 Such a rent cannot, of course, continue any longer than the estate in the land of him who created it. If therefore he has a fee-simple, he may create a rent for a term of years, or for life, or in fee, though to have it a good rent it must be created by one who is seised of land, for a rent cannot be granted or created out of an incorporeal inheritance, and it must be done by deed.2* 11. It would seem that though fee-farm rents are unusual in this NOTE. It is said that estates in fee-simple in rents charge are not uncommon in Liverpool and Manchester, where it is the usual practice to dispose of an estate in fee-simple in lands, for building purposes, in consideration of a rent charge, in fee-simple, by way of ground rent granted out of the premises to the original owner. These are created by a conveyance from the vendor to the perchaser and his heirs, which is recited to be to the use that the vendor and his heirs may thereout receive the rent charge agreed on, followed by a clause giving a right to distrain, and then to the further use, that, in case of non-payment, within so many days, the vendor or his heirs may enter and hold possession till all arrears are paid. Wms. Real Prop. 275. 1 Watk. Conv. Coventry's note, 276, 277. ? Lit. § 218; Wms. Real Prop. 270; 2 Dane, Abr. 452. country, the same reason may often exist here for creating them, as in England, and, with the exception of the matter of remedy to enforce the same, there seems to be nothing in the law here inconsistent with their being brought into more general use. Mr. Dane, speaking of rent charge, says: "It may exist in Massachu[*10] setts, for men by their deeds may grant such *rent," and adds, "in some States this species of rent may be common."1 And Mr. Walker, speaking of another State, says: "It is scarcely known in Ohio, though undoubtedly it might exist there." 2 In New Jersey, the court in a case involving a question of a rent charge, say: "The rent is therefore a perpetuity or a fee-simple like the landitself to one and his heirs and assigns forever." In Virginia the court recognized the validity of a rent which was reserved in a deed of an estate in fee-simple. And in New York, a rent charge reserved out of a grant in fee, is good, and descends to the heirs of him in whose favor it is reserved. Such covenants to pay rent run with the land as a burden; such rent charge may also be devised." It 12. In respect to the remedy for the recovery of a fee-farm rent, it has already been remarked, that the common law gave the owner of a rent service the right to distrain the tenant's cattle or other personal property upon the premises for the purpose of compelling the payment thereof, and this right still exists in Pennsylvania. has also been stated, that the English statute extended the right of distress to cases of rent charge and rent seck. The right of making distress in case of rent charge, existed in New York until 1846, when it was abolished by statute.8 It never existed in the New England States. But the common-law right of distress, as modified by the statute 4 Geo. II. ch. 28, has been adopted as the law of many of the States. Those enumerated by Judge Kent, are New Jersey, Pennsylvania, Delaware, Indiana, Illinois, Maryland, Virginia, Ken 1 3 Dane, Abr. 450; Adams v. Bucklin, 7 Pick. 121, 123, which was a case of a rent charge reserved upon a grant of land in fee. Fee farm rents exist in Missouri. Alexander v. Warrance, 17 Mo. 228. 2 Walk. Am. Law, 265. 4 3 Farley v. Craig, 6 Halst. 262, 267. Wartenby v. Moran, 3 Call, 424. See also, Scott v. Lunt, 7 Pet. 596, 602, a case in the District of Columbia; Marshall v. Conrad, 5 Call, 364, 406. 6 Van Rensselaer v. Hays, 19 N. Y. 68. 6 Smith, Land. & Ten. 161, n.; 2 Sharsw. Bl. Com. 43, n. 7 Taylor, Land. & Ten. 231; 3 Prest. Abst. 54. 8 Guild v. Rogers, 8 Barb. 502. 92 Dane, Abr. 451; 3 Kent, Com. 473, n. tucky, Mississippi, South Carolina, and Georgia, while in North Carolina and Alabama, it has been directly or indirectly abolished by legislation, and does not exist in Tennessee or Ohio.1 So it is stated in the note to Morris's edition of Smith's Landlord and Tenant, that the common law upon the *subject of distresses for rent, [*11] has been adopted very generally in the United States. As the purpose of this chapter is rather to define the right, than to prescribe the forms, in detail, of the remedy, the reader must be referred to treatises designed for that purpose, for the law as to when, where, and how distresses may be made use of as a means of enforcing the payment of rents.8 Whether there is a power of distress or not, the one to whom the rent is due may have a remedy by action at law to recover the same from him who holds the land out of which it is payable. Thus, where upon a lease in fee, there was reserved a certain rent, and a covenant in the lease on the part of the lessee, binding himself and all holding his estate to the payment thereof, it was held that a reversioner could recover rent, pro rata, from one who held a part of the leased estate. And there is sometimes a right reserved to the holder of the rent to enter upon the premises, and either defeat the title of the owner thereof, as for a breach of a condition, or, what is more common, hold the same until he shall have been reimbursed the rent out of the income of the estate. The form of the action, as well as the extent of the right of entry by the holder of the rent, depends upon the terms of the deed by which the rent was created. 13. Thus, one may enfeoff another in fee, reserving to himself and heirs a rent, with a condition that he may enter and repossess himself of the original estate upon non-payment thereof. This constitutes a conditional estate which the grantor or his heirs may be able to enforce, but not an assignee or grantee of the rent.5 This condition may be enforced by entry without previous notice and demand, if the parties so agree, by the instrument granting the estate. But where, as is usual, a demand of the rent must be made before undertaking to enter and defeat the estate, the law is exceed 13 Kent, Com. 472, 473. 3 Smith, Land. & Ten. Morris's ed. 157, 186; 4 Van Rensselaer v. Bonesteel, 24 Barb. 365. 5 Litt. § 325, and note 84. 2 Smith, Land. & Ten. 161, n. Tud. Lead. Cas. 188, 194. 6 Co. Lit. 201, note 85. The rent ingly strict as to the manner in which this is to be done. demanded must be the precise sum that is due, not a penny more nor less. The demand must be precisely on the last day at which it is due, and at a convenient hour before sundown, so that the money may be accurately counted. It must be made on the premises, if no other place is specified, at the front door of the house, [*12] if there is a house thereon, otherwise upon the most notorious part of the land, whether any one is upon it or not, though by statute 4 Geo. II. ch. 28, § 2, provision is made for bringing ejectment without actual entry in certain cases.1 Instead of a condition in the instrument giving the grantor a right to enter and defeat the grantee's estate, altogether, upon nonpayment of the rent reserved, it may be so framed that the grantor may enter and hold possession until he makes the rent, out of the enjoyment of the estate, in which case the land goes back to the grantee or his assigns. And by the way of a use, to be hereafter explained, the right to enter for this purpose may be reserved to another than the grantor and his heirs. And this right to hold for the rent may be defeated at any time, by the payment of the balance due, nor is so nice an observance of the rule as to a demand of rent before making entry, necessary in such a case, as where the effect of the entry would be to defeat the entire estate. 14. The form of action to be adopted for the recovery of the rent, seems to depend upon the form of the instrument by which this was created. If by indenture the grantee of the land and grantor of the rent covenants to pay, the covenantee may have covenant for the same. If the rent is reserved in a deed poll, inasmuch as the grantee signs nothing, nor binds himself by any express agreement on his part, covenant would not lie, but assumpsit would. And, in 1 Co. Lit. 201, 202; 1 Wms. Saund. 287, n. 16; Farley v. Craig, 6 Halst. 262, 268; Stearns, Real Act. 26, 27. 2 Lit. § 327; Co. Lit. 203, and note 93; Farley v. Craig, 6 Halst. 262, 267. 3 Co. Lit. 202, 203; Farley v. Craig, 6 Halst. 262, 270, was a case of ejectment to recover a parcel of land, to hold and take the profits until they should satisfy the arrears of a certain rent charge created by a deed from Logan to Smith, in fee, reserving a rent in fee, the defendant claiming the land by mesne conveyances from Smith, and the plaintiff claiming the rent by conveyance from Logan's heirs. 43 Cruise, Dig. 288; Porter v. Swetnam, Styles, 406; Parker v. Webb, 3 Salk. 5; Vyvyan v. Arthur, 1 B. & C. 410. Adams v. Bucklin, 7 Pick. 121; Goodwin v. Gilbert, 9 Mass. 510; Newell v. Hill, 2 Met. 180. |