No. LXXXII. her exs ads or ass to use his and their name or names in any Settling Litiaction or actions suit or suits that shall or may be sued comgations under Will. menced or prosectd agst the sd S. B. D. the exr as afd or any or. psn or psns whomsr to recover such psl este or any pt throf And also shall and will do all rease acts deeds and things whatsr for the putting the sd M. W. in the actual posson and enjoyment of the sd psl este and evy pt thof And it is hby also agrd betn the sd pties hto that at the time of exeting the forementd deeds and convys they the sd E. S. and M. W. shall and will seal and deliver each one to the or. mutual general reles of all claims and demands whatsr from the beginning of the world to the day of the date of such rele (Here add if necessary the penalty clause, see ante, No. XLVI.)

Definition.

Distinction be

tween annuity

and rentcharge.

SECT. 1. An annuity is a yearly payment of a certain sum of money granted to another for life or years, or in fee, Co. Litt. 144 b. If a man seised of land grant a yearly rent, issuable out of the land, to another in fee-tail or for term of life &c., with a clause of distress, this is a rent-charge. The principal difference between an annuity and a rent-charge is the remedy which the law gives for the recovery of the arrears. If an annuity issue out of land, as it now most commonly does, the grantee has his election to bring a writ of annuity, and, charging it upon the person, to make it personal, or to distrain the land so as to make it real, Co. Litt. 144 a. But he cannot then have them both together, for if he recover by a writ of annuity, the land is discharged of the distress; but if he distrain for the

upon

arrears, and avow the taking of the distress in a court of record, then is the land charged, and the person of the grantor discharged, Litt. s. 219. As few grants of annuities are without a covenant for payment expressed or implied, an action of covenant may, and now mostly is, brought for the recovery of the arrears when a distress cannot be made. When the grantor of an annuity wishes his person to be discharged, and his land charged, a clause to that effect may be inserted in the deed, Litt. s. 220.

Annuity.

2. To make a good grant of an annuity, no particular technical How granted. mode of expression is necessary. If, therefore, a person intending to

grant a rent-charge, do it in such a manner that it shall be void as a

rent, it will be good as an annuity, for the words "to perceive" or By the words perceive" and "receive," is a sufficient charge on the person of the grantor, 1 Roll. "receive." Abr. 227; 2 Vin. Abr. 507 [E].

3. If a rent-charge be granted to a man and his heirs, he shall not To whom granted. have a writ of annuity against the heir of the grantor, although he has assets, unless the grant be for him and his heirs, Plowd. 457; Co. Litt. 144 b. But in the case of a corporation, which has a perpetual continuance, the successors will be bound, although not named, Harg. Co. Litt. 144, n. 2.

rent-charge.

4. By the old law, if a man had a rent-charge to him and his heirs, Apportionment issuing out of certain lands, and he purchased any parcel of those of annuity and lands to him and his heirs, all the rent-charge became extinct, because it could not be apportioned, Litt. s. 222. So likewise an annuity, if it were not made chargeable on the person, before the purchase, Dyer, 140; Gilb. Rents, 152. So a rent-charge, not being apportionable, if it were made payable half-yearly or quarterly, and the annuitant died in the interval between the days of payment, nothing was due for the time he lived, unless by express stipulation, Pearly v. Smith, 3 Atk. 260. Whether an annuity chargeable on the person only, and not on the lands, were subject to the same rule, appears to have been doubtful, Edwards v. Countess of Warwick, 2 P. Wms. 176. The law of apportionment has since been altered by the 4 & 5 Will. 4, c. 22, [see APPORTIONMENT]; but as it does not appear to have removed all doubts, it will be safer to insert the usual stipulation for the payment of the annuity for the intervening time that has elapsed between the last payment and the decease of the annuitant, see further Dig. p. ii. tit. APPORTIONMENT.

5. By the common law, if a rent be granted to a man and his heirs generally, and he die without devising the rent, and without an heir, the rent does not escheat, but sinks into the land, Butler's n. Co. Lit. 298, n. (2.) Some have supposed that the common law is so far

VOL. I.

When an annuity or rent

charge goes to the heir.

Annuity.

When a wife is

by her husband.

Power of distress.

altered by the Statute of Frauds, that an estate pur autre vie in a rent continues for the executors or administrators of the owner of the rent when it is not limited to his heirs; but the better opinion appears to be, that as the words of the statute, which give estates pur autre vie to executors or administrators, only extend to those cases in which there can be no occupant at common law, which in rents cannot be; therefore, if such an estate be limited to a man and his heirs, and he die without devising the rent, and without heirs, it seems that his executors or administrators would not be intitled to the rent, but it would sink into the land, Savory v. Dyer, Ambl. 139; Smartle v. Penhallow, 2 Ld. Raym. 1000. When therefore it is the grantee's intention that an annuity, or rent-charge, for the life of the grantor or the lives of nominees, should form part of his personal estate, it should be limited to him, his executors, administrators and assigns, for a term of years, if the grantor, nominee or nominees, or the survivor of them, should so long live. Such an express limitation, however, does not appear to be necessary in the grant of a personal annuity pur autre vie, because it is not a freehold, but only a chattel, Savory v. Dyer, Ambl. 139; 1 Dick. 162; nor in a grant of an annuity or rent-charge out of a term of years, for this is good for so many years as the term continues, and it is not determined by the death of the grantee, Cro. Eliz. 183; 7 Co. 25 a; 1 Roll.; Abr. 831, pl. 3.

6. If a man be possessed of land for a term of years in the right bound by grant of his wife, and grant a rent-charge and die, the wife shall avoid the charge, because she does not claim under her husband. But the husband's alienation of the term itself, or any part of it, binds the wife surviving, Hargr. Co Lit. 184 a, n. 1; Butl. Co. Lit. 331 a, n. 1. 7. By the 32 H. 8, c. 34, a power of distress is given to grantees and assignees of reversions, their heirs, executors, successors, and assigns; and by the 32 H. 8, c. 37, the same power is given to the executors and administrators of tenants in fee-simple, fee-tail, and for life: this power is extended by 4 G. 2, c. 28, to arrears of rents seck, rents of assize, and chief rents or quit rents. Nevertheless in respect to annuities, an express power of distress is absolutely necessary, to enable the grantee to distrain; for it appears, that where an annual sum is granted upon an incorporeal hereditament, the sum so reserved, although nominally a rent, is only a personal annuity, Co. Lit. 47a; Dean and Chapter of Windsor v. Gower, 2 Saund. 302. So likewise, in creating a rent for life or years to be issuing out of a chattel interest, this clause is equally necessary, because it appears to be a rule of common law, that notwithstanding any statute, a rent

cannot issue out of a mere chattel interest, 7 Co. 23, 24; see further Dig. p. ii. tit. DISTRESS; p. iii. tit. LANDLORD AND TENANT.

Annuity.

8. A power of entry, as well as a power of distress, is usually given Power of entry.

to the grantee of an annuity, or rent-charge, or to his representatives,

in default of payment for a certain number of days. If this be limited by way of use, it takes effect from the Statute of Uses; but if in a grant of rent, to be issuing out of certain lands, a proviso, condition, or covenant be inserted, that if the rent be in arrear, the grantee may enter; in that case he or his assignee may enter by virtue of such proviso, Butl. Co. Litt. 203 a, n. (1), unless it be otherwise expressly stipulated. (As to the clauses of distress and entry in the case of copyholds, see GRANT OF AN ANNUITY SECURED ON COPYHOLDS.)

attorney, bond,

9. In order to make the person of the grantor, as well as his estate Warrant of liable, it is usual to secure the payment of the annuity or rent-charge and covenant to either by a warrant of attorney to confess judgment, or by a bond, or pay. by a covenant to pay, very frequently by a bond or covenant, as well as a warrant of attorney; but where there is a covenant to pay, a bond does not add to the security, and is therefore a superfluous expence. When a warrant of attorney is taken, judgment ought to be entered up immediately, Wild v. Sands, 2 Stra. 7, 8; Cowie v. Allaway, 8 T. R. 257. But in order to obviate the consequences of any omission so to do, a provision is mostly inserted, dispensing with the necessity to revive judgment.

10. An annuity may be redeemable, but it is not necessarily so; Redemption of and it is not redeemable, unless there be a special provision to that annuity.

effect in the deed granting it, Coverley v. Burrell, 5 B. & A. 257 ; which ought in no case to be omitted, where it is intended by the parties that it should be redeemed.

the receipts of

11. In the grant of an annuity as in other cases, where a trust is Effect of making raised by deed or will for sale of an estate, a clause that the receipts trustees valid of trustees shall be sufficient discharges, is mostly inserted, and rarely discharges. ought to be omitted; as equity will in some cases bind purchasers to see the money applied according to the trust, if they be not expressly released by the authority of the trust, Abbot v. Gibbs, 1 Eq. Ab. 358; Balfour v. Welland, 16 Ves. 151.

12. The grant of an annuity being a species of conveyance, an ad Stamp. valorem stamp is required for an annuity deed by the 55 G. 3, c. 184. (As to an agreement to grant an annuity, assignment of an annuity, and memorial of an annuity, see the subsequent precedents.)

No. LXXXIII. Agreement to grant Annuity.

A feme covert may enter into an agreement to grant an annuity.

Specific performance when enforced.

Grantor agrees

to grant an annuity.

To secure pay

ment by warrant of attorney.

No. LXXXIII.

Agreement to grant an Annuity.

Obs. 1. An agreement for the grant of an annuity is sometimes entered into, for the purpose of completing the transaction at some future period, and may be entered into on the part of a feme covert, with respect to her independent property, Essex v. Atkins, 14 Ves. 542. Such an agreement need not be memorialized, as it is not within the 53 G. 3, c. 14, Jackson v. Lever, 3 B. C. C. 605; Nield v. Smith, 14 Ves. 491; but it is frequently required by way of pre

caution.

2. Specific performance of an agreement to grant an annuity, as a consideration for the purchase of an estate, will be enforced, although the vendor die previous to the completion of the contract, Mortimer v. Capper, 1 B. C. C. 156; Jackson v. Lever, 3 B. C. C. 605. Articles &c. see ante, No. XLVI. Betn (grantor) of &c. of the one pt and (grantee) of &c. of the or. pt Witness That the sd (grantor) in conson (a) of the sum of £ doth hby agree to grant unto the sd (grantee) an annty or clear yrly sum of £ (b) during the life of the sd (grantor) to be pd quarterly from the time of granting the same with a proportional part (c) up to and inclusive of the day of his death to be charged upon and issuing out of all those freehold messes tents and heredts of the sd (grantor) situate at in the co. of and to be furr secured by the bond and warrant of attorney to confess judgment

To make out a of the sd (grantor) And the sd (grantor) shall and will deliver good title,

convey messuages, &c.

unto the sd (grantee) on or befe the

day of

next a

full and perfect abstract of the title of him the sd (grantor) to the sd messes tents and herdts (d) And also shall and will de

£

of

(a) If the purchase money be not all paid at once, then say,
at the exon of the sd secties and the further sum of £

cal mths next ensuing."

"The sum of within the space

(b) Or, if it be so agreed, "during the life of the grantee," or "during the lives of nominees or the longest liver of them," or "for a term of years determinable on lives."

(c) As to the reason for this clause, see Pref. s. 4.

(d) If the annuity be secured on leasehold premises, and it be so agreed, say, "But the sd (grantor) shall not be required to produce further evidence of his title to the sd preses than the sd lease and all deeds relating thereto." See ante, AGREEMENT TO GRANT A Lease, 8. 6.