affect the general contract, there are others which apply to CHAP. VIII. the enforcing payment, or to the securities. These will DETERMINATION be considered in the subsequent part of the treatise, which relates to the remedies for the parties. OF AN ANNUITY BY BREACH OR PERFORMANCE Thus far of the actual extinguishment and determination OF CONDITIONS. of an annuity or rent. But it is right to observe that a rent A rent may be may be merely suspended and not extinguished, in which only suspended. case it may revive and be again enforced. A rent is said to be suspended when it is conveyed to the owner of the land, or the land on which it is charged to the owner of the rent, not absolutely or finally, but for a certain time, after which it will revive. (a) From the case of Peto v. Pemberton, (b) these propositions may be deduced, that where the grantee of the rent makes the suspension, his act alone will not revive it, but where it is caused by the act of law, or by the joint act or agreement of the parties, it may revive. There one Humfrey Peto, being seised of certain land, granted a rent charge thereout to his son Humfrey, to commence on the grantor's death. His land descended to William Peto, his heir, and from him to Sir Edward Peto, who demised a parcel of the land to Humfrey, the grantee, for a term of one hundred years, by force of which lease he became possessed. Afterwards he surrendered the term, and distrained for the arrears accruing after that surrender. It was contended that the rent was extinguished by the unity of possession, and could not be revived. But it was answered, that the surrender and acceptance thereof was a determination of the lessee's interest by the act of both parties, and therefore the rent had only been suspended during the term, and was now revived. The Court of Common Pleas agreed with this opinion, and gave judgment for the grantee. It is, however, expressly stated, that as regarded third parties, if the lease had been assigned to a stranger, then the surrender would not affect his interest, and the lease would not have been determined. (a) By Vaughan, C. J. in Holden v. Smalbrooke, Vaugh. 199. (6) Hutt. 94; Litt. Rep. 58.92; Cro. C. 101; Het. 50. 71. 360 CHAP. VIII. DETERMINATION OF AN ANNUITY When a rent is suspended, and afterwards revives, the grantee cannot claim the payments which become due during the suspension, by electing to treat the contract as PERFORMANCE an annuity during that term, nor can he charge them upon OF CONDITIONS. the estate after the revival. (a) BY BREACH OR But the rent shall be dis charged and not suspended if the personal annuity be released. Where that which would have created merely a suspension of a rent also operates as the release of the personal annuity, the rent, it seems, is wholly discharged, and does not revive. This point is not indeed actually decided, it is only left as doubtful in Lord North v. Butts; (b) yet the reasoning of the reporter is strong in support of this position. There the grantee of an annuity, with a clause of distress in a certain manor, granted by the Archbishop of Canterbury, devised to the Archbishop, to retain out of this annuity a certain sum, and then devised it over; it was contended, that as far as it was personal, the devise to the Archbishop totally extinguished it, and therefore the law would relieve the land of the charge. The objection, however, was not decided. (a) Johnson v. Barley, Cro. E. 361; Dyer, 140. a. marg. ; Cook v. Foun tain, 3 Swa. 596. (b) Dyer, 139. b. See above, page 303. CHAP. IX, OF THE GRANTEE'S CHAPTER IX. OF THE GRANTEE'S REMEDies. THE last division of the subject embraces the redress and remedies which belong to the several parties to this contract; and as the grantee and grantor have their separate remedies, which will require considerable attention, it will be divided into two parts, and, first, the grantee's remedies will be treated of; and, secondly, the grantor's; this present chapter being devoted to the consideration of the former. The remedies of the parties. Legal and equit Since the grantee generally requires to enforce perform- 1. Of the granance of the contract, though occasionally there occur in- tee. stances in which he seeks to avoid it, the former is what able. must first be examined. In such cases the remedies naturally depend upon the nature of the securities, and may be sought either legally or on an application to a court of equity. The legal remedies resolve themselves into two classes; those which are summary, and proceed on the sole and private act of the party himself, and those which require the intervention of a court of law. remedies. The summary remedies are the entry and taking pos- Legal summary session of the lands charged, the retainer of money in satisfaction of the annuity, and the distress. tisfaction of the When a rent charge is granted, the grantee has, as a The entry on necessary incident, a power to distrain upon the land, when the land in sahis rent falls into arrear. But an additional power was arrears. frequently conveyed in the deed to the grantee, on default of payment, to enter on the lands charged, and to hold the possession of the same until the arrears were satisfied. modern times, when a rent charge is granted, it is not unusual for the grantor to create a term of years, and vest In CHAP. IX. OF THE GRANTEE'S REMEDIES. What right is gained thereby. it in trustees, so as to give them a right of entry on default of payment. When the grantee, in the exercise of this right, did enter, it was holden that he had a fee simple determinable on satisfaction of the arrears. (a) He had a right to take the rents and profits of the land, but might not injure the inheritance; and as he had a right of entry, if possession be denied to him, he might bring an ejectment. This was so decided in Jemott v. Cooly, reported in several old authorities, (b) and though in Parkhurst v. Smith, (c) Lord C. J. Willes expressed a doubt whether the case was good in law; yet he afterwards cited it in Hassell v. Gowthwaite (d) as a valid authority, to prove that an ejectment could be maintained by the grantee on such a right. He stated, however, that the Court of Common Pleas inclined to think that a demand of the rent should be made before the entry, though it was not necessary to decide this. It was holden at Nisi Prius that the ejectment could not be maintained without an actual entry on the land, the common consent rule not dispensing therewith. (e) It has been since, however, settled in a case (ƒ) before Lord Holt, that as between landlord and tenant, on an ejectment for breach of covenant, the general consent rule will be sufficient proof of entry, and the statute 4 Geo. II. c. 28, has dispensed with the necessity of the entry altogether between such parties, but it may still be questioned whether an entry be not necessary in order to support the grantee's claim to the land in this action. Where a rent of 201. was granted, payable half-yearly, and the grantor covenanted that if the said yearly rent of 201. should be in arrear for twenty days, the grantee might (a) Havergale v. Hare, Cro. J. 510; Pop. 126, 147. (b) 1 Lev. 170; 1 Saun, 112; Sir T. Ray, 136, 158; 1 Keb. 784, 915; 1 Sid. 223, 262, 344. (c) Willes, 340. (d) Ib. 500. (e) Abbott v. Sorrell, 3 Keb. 282. (f) Little v. Heaton, Lord Raym. 750; Salk. 259, and note there. CHAP. IX. OF THE GRANTEE'S The right of entry passes to distrain, and in default of distress might enter and hold the land to himself and his heirs, it was determined that the right of entry accrued when 10%., one half-yearly payment, had been in arrear above twenty days. (a) It is also decided in this case that if the rent be assigned, the right of entry the assignee of passes with it to the assignee, being for the security of the the rent. payment and incident thereto. And in like manner a penalty on non-payment passes with the rent, and therefore where the grantee of a rent with a penalty devised the rent, it was held that the penalty went to the devisee as an incident to it. (b) Yet the courts of law have been more strict latterly in their construction of the instruments which contain the grant and the right of entry, and therefore it was held not to pass from the first grantee in Hassel v. Gowthwaite. (c) In that case one R. D. devised a rent charge to his widow during her widowhood, with power to her to enter on nonpayment, and enjoy the premises charged until the arrears were satisfied; and after her marriage or death, to be paid to C., his executors, administrators, and assigns. The widow married, whereupon C. received the rent during his life, and then died without disposing of the rent, but having appointed D. his executor. It was held by the court of Common Pleas that D. had no right of entry on the nonpayment of the rent to him, and therefore could not maintain an ejectment. This right is scrutinized strictly by the courts. heir. According to the report of Jemott v. Cooly, in Levinz, The right would Keble, and Raymond, this right of entry is an inheritance descend on the which would descend upon the grantee's heir; but when the entry has been made, as only a chattle interest in the land is gained, it shall pass with the arrears to the executor. Here it may be observed, that in Havergale v. Hare another point arose, as to the effect of a fine levied as an additional security to the grantee, after certain arrears had accrued, upon a right of entry conveyed in the original (a) Havergale v. Hare, Cro. J. 510; Poph. 126, 147. (b) Brendloss v. Phillips, Cro. E. 895. (c) Willes, 500. |