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messuage and much land, meadow, pasture, wood, &c. thereunto belonging, or therewith used: for this word doth properly signify a capital or principal messuage, and a great quantity of demesnes thereunto appertaining (a).
So, by the name of a messuage, he may pass a house, a curtelage, a garden, an orchard, a dove-house, a shop, or a mill, as parcel of the same; the like of a cottage, a toft, a chamber, a cellar, &c. Yet these may pass by their own single names also, as " of one messuage, one curtelage," &c. (b).
If A. let a garden ground for years, and the lessee demise part of the term to an under tenant, who builds on it, by a grant of the garden ground the buildings thereon will pass (r).
So, a house; and in case of a lease of a house, together with goods, it is usual to make a schedule thereof and affix it to the lease, and to have a covenant from the lessee to re-deliver them at the end of the term; for without such covenant the lessor could have no other remedy, but trover or detinue for them after the lease ended (d).
The demise of a house "with the appurtenances," will, it seems, pass the house, with the orchards, yards, and curtelage, and garden, but not the land (e): especially if it be at a distance, though occupied with the house; but if the lessor had built a conduit, though in another part of the land, yet the conduit would pass with the house, because it is necessary, et quasi, appendant thereto (f): yet if the lessee erect such a conduit, and afterwards the lessor, during the lease, sell the house to one, and the land wherein the conduit is to another, and afterwards the lease determines, he who has the land wherein the conduit is may disturb the other in the using thereof, and may break it, because it was not erected by one who had a permanent estate or inheritance, nor made one, by the occupation and usage of them together, by him who had the inheritance.—So, the demise of a house, "and the appurtenances," will not pass an adjoining building not accounted parcel of the house although held with it for thirty years (g). And where the demise was of a messuage with all rooms and chambers thereto belonging and appertaining, it was held not to comprehend a room, which had once formed part of the messuages, but which had been separated from it by means of a wooden partition, and had not been occupied with it for many years previous to the demise (A).
But in one case it was held that a grant from the crown, of a house cum pertinentiis would pass land that was occupied with the house : in this case however it should not be overlooked that the point arose on a special verdict, in which the house and land were found to be all one (a).
(a) Shcp. Touch. 93.
(«) Ibid. 11.
(c) Burton v. Brown. Cro. Jac. 648.
(J) Bac. Abr. tit. Leases. (A).
(*) Smithson v. Cage, Cro. Jac. 5^6.
Hearn v. Allen. Cro. Car. 57.
(f) Nicholas v. Sir J. Chamberlain. CroJac HI.
(g) Bryan v. Wetherhead. Cro. Car. 1 7.
(i) Kcrslake r. White, % Stark. $08.
Whether the thing claimed as appurtenant be accounted parcel or not, and the intention of the parties, are the rules by which to judge in these cases (b).
Thus, where there is a conveyance in general terms of all that acre called Black-acre, every thing which belongs to Black-acre passes with it, but whether parcel or not of the thing demised is always matter of evidence (c).
It may be necessary, however, to put a different construction on leases made in populous cities and on those made in the country. It is known, for example, that in the metropolis different persons have several freeholds over the same spot (as in the case of the Adelphi) i different parts of the same house are let out to different people; such is the case in the inns of Court. It would therefore be very extraordinary to contend that if a person purchased a set of chambers, then leased them, and afterwards purchased another set under them, the after-purchased chambers would pass under the lease (d).
So, the demise of premises in Westminster late in the occupation of A. (particularly describing them), part of which was a yard, was held not to pass a cellar situate under that yard, which was then occupied by B. another tenant of the lessor; for though prima facie indeed, the property in the cellar would pass by the demise, yet that might be regulated and explained by circumstances; and, as the construction of all deeds must be made with a reference to their subject-matter, it is right in such cases to let in evidence to shew the state and condition of the property at the time when the lease was granted (c).
Where a lessee during the continuance of his term agreed by parol with his lessor, that he (the lessor) should build a new story to the demised premises, and that the lessee should pay 10 per cent, on the cost of the new building for the residue of the term, it was contended that this contract for an additional rent was a demise of the new buildings, and ought according to the Statute of Frauds to have been reduced to writing, but it was held that whatsoever was built in pursuance of the contract, instantly became parcel of the premises already demised, and that this was a collateral contract, and not within the statutes (c).
The respective apartments of a house may be, and frequently are, let to several and distinct individuals; which tenancies are termed lodgings, and the tenants thereof lodgers, respecting which see more at large hereafter.
(a) Jennings v. Lake. Cro. Car. 169. f (t) Doe d. Freeland v. Burt, 1 T. R. 701.
(b) Bryan v. Wethcrhead. Ibid, 17. !(J) Hoby v. Roebuck. ;Taunt. 157.
Section II. Of incorporeal Hereditaments.
An incorporeal hereditament is a right issuing out of a thing corporate (whether, real or personal), or concerning, or annexed to, or exercisable within the same. Incorporeal hereditaments are principally these, viz. advowsons, tithes, tolls, estovers, commons, ways, offices, franchises, corrodies or pensions, annuities, and rents (a).
Incorporeal hereditaments are, generally speaking, capable of being demised, and such demise must be by deed, for they lie in grant and not livery; so things incorporeal may be granted by copy of courtroll (i).
Advowsons.—An advowson is a valuable right, and properly the object of sale; it is therefore real assets in the hands of the heir: but as the exercise of this right is a publick trust, it cannot, it ought not, to produce any profit.—Therefore, though an advowson may be granted, either by a grant by deed or will of the manor, &c. to which it is appendant, without any exception of the advowson, in which case it will pass (for it is parcel of the manor, except in the case of the king), or by grant of the advowson alone, and such grant may be either in fee, or for the right of one or more turns, or for as many as shall happen within a time limited: yet it cannot properly be the subject of a demise, for as no profit is permitted to accrue, no rent can be reserved, nor any services performed to the proprietor.
This, however, does not seem to be quite correct: for there is no doubt, (says Mr. Wooddeson,) but that the lessee of tithes, an advowson, or any incorporeal hereditament, would be liable to an action of debt for the rent agreed upon (c). So where lessee for years of an advowson was presented to the advowson by the lessor, it was adjudged to be a surrender of his term (d).—Thus it seems clear that an advowson may be the subject of a demise: and though L. C. Talbot doubted (e) whether the word "tenements," which had been said to carry an advowson in a will, extended to incorporeal inheritances, yet it appears to be the better opinion, that as lands and houses are tenements, so is an advowson a tenement (f).
Tithes.—Tithes have been defined to be a tenth part of the increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants; and are an ecclesiastical inheritance, collateral to the land, and properly due to an ecclesiastical person.
A parson of a church may grant his tithes for years, and yet they are not in him (a).
By the statute 5 G. 3. c. 17. entitled "An act to confirm all leases already made by archbishops and bishops, and other ecclesiastical persons, of tithes and other incorporeal hereditaments, for one, two, or three life or lives, or twenty-one years; and to enable them to grant such leases, and to bring actions of debt for the recovery of rents reserved and in arrear on leases for life or lives," any other person or persons, having any spiritual or ecclesiastical promotions, are enabled to grant such leases of tithes, tolls, or other incorporeal inheritances, "which shall be as good and effectual in law against such archbishop, bishop, masters and fellows, or other heads and members of colleges or halls, deans and chapters, precentors, prebendaries, masters and guardians of hospitals, and other persons so granting the same, and their successors, and every of them, to all intents and purposes, as any lease or leases already made, or to be made by any such archbishop, &c." by virtue of the stat. 32 H. 8. c. 28. or any other statute then in being; and an action of debt may be brought by such lessors for rent in arrear, as in the case of any other landlord or lessor.
Tolls.—Tolls also may be let or mortgaged (6).
Estovers.—So, estovers (of which more hereafter) may be leased: the grantee, therefore, of house-bote, or hay-bote, may let it to another (c).
Commons.—With respect to commons, the stat. 13 G. 3. c. 81./. 15. empowers the lord of any manor with the consent of three-fourths of the persons having right of common upon the wastes and commons within the manor, at any time to demise or lease, for any term or number of years, not exceeding four years, any part of such wastes and commons, not exceeding a twelfth part thereof, for the best and most improved yearly rent that can by public auction be got for the same; and directs that the clear net-rents shall be applied to drain, fence, and otherwise improve the residue of the wastes and commons.
A lessee for lives cannot acquire a fee by encroachment upon the waste adjoining the land demised, though accompanied by thirty years' uninterrupted possession, but it shall be intended that he inclosed the waste in right of the demised premises, for the benefit of the lessor after the term expired; more especially, if his lessor be seised in fee of the waste. Acts exercised in assertion of right upon one part of a waste are admissible in evidence against occupiers of another part of the same waste (d).
(a) Shep. Touch. 141. j (r) Shep. Touch. M*. Bac. Abr. tit. Leases.
(O Fairtitle d. Mytton v. Gilbert, 2 T. R- I (A). tty. j (d) Bryan d. Child v. Winwood. 1 Taunt.
Ways.—Ways are, or a right of way is, demiscable with the land; for the grantee or lessee shall have all the ways, easements, &c. which the grantor or lessor had (a).
Therefore, where one as trustee conveys land to another, to which there is no access but over the trustee's land, a right of way passes of necessity, as incidental to the grant (b).
If a man, upon a lease for years, reserve a way to himself through the house of the lessee to a back-house, he cannot use it but at seasonable times and upon request (c).
Offices.—An office may be granted by way of lease, provided no inconvenience or injury to the public is likely to ensue; and it may be granted in fee tail, for life, or years, or at will (d).
But an office to which a trust is annexed, or which concerns the administration of justice, cannot be granted for years, for then it would go to the executor, or administrator, or ordinary, and might be seized upon outlawry, &c. (d). Therefore the office of marshal of the King's Bench cannot be granted for years, because it is an office of trust and daily attendance; and such a termor for years may die intestate, and then it would be in suspense until administration is committed, which is the act of another Court (e).
It hath however been held, that a lease thereof for years during the life of the grantee is good; for hereby the danger of the office going to executors is avoided. It appears also, that the dean and chapter of Westminster made a lease for years of the Gate-house prison (since pulled down] and the lessee had committed several offences which amounted to a forfeiture, for which the office was seised: but no objection was made to its being let for years. There seems to be a difference, however, between the two cases: the first, namely, that of the marshal of the King's Bench, (since regulated by statute 13 G. 2. c. 17.) was a grant from the crown, in whom all offices, in relation to the administration of justice, are originally and inherently lodged, and therefore for the crown to grant out such office for years may be liable to the objections before mentioned; but in the latter case, namely, that of the Gate-house prison, the dean and chapter are the immediate grantees of the crown, and they have the office to them and their successors for ever in fee, and are perpetual gaolers themselves, and answerable to the crown, notwithstanding any lease over to another •, and therefore they always take security of such under-lessee for their own indemnity (f).
Such offices as do not concern the administration of justice, but only