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If tenant for life, with power to make leases, demises, rendering rent to him, his heirs, and assigns, it shall be adjudged to him in remainder (a).
One seised in fee lets for years reserving rent "during the term," to the lessor, his executors, administrators and assigns, and lessee covenants to pay it accordingly, and the lessor devises the reversion and dies; the reservation is good to continue the rent during the whole term, and the devisee shall have an action of covenant for repayment (i).
If a copyholder by licence lease, rendering rent to him and his wife, and his heirs, where by the custom the wife has her free-bench, the wife shall have the rent as incident to the reversion (c).
If a lease be made by a husband, reserving rent to him for life, and to his wife for life, it will be a reservation during the life of the survivor (c).
A posthumous child, born after the next rent-day had incurred, after the death of his father, is under the stat. 10 & 11 IV. 3 c. 16. intitlcd to the intermediate profits of the lands settled, as well as the lands themselves; for that act of parliament was made to enable posthumous children to take estates as if born in their father's lifetime, though there should be no estate limited to trustees to preserve the contingent remainders (d). —Indeed it is now laid down as a fixed principle, that wherever such consideration would be for his benefit, a child in ventre la mere shall be considered as absolutely born; for all the cases establish this point, that there is no distinction between a child in ventre sa mere and one actually born (e).
It may be observed that "heir" is the only word of privity in law requisite to the reservation of rents, and in conditions; the heir being, in representation, in point of taking by inheritance, the same person with the ancestor (/).
A man may reserve a rent to himself for his life and a different rent to his heir (g).
If there be two joint-tenants, and they make a lease for years by parol, or deed-poll, reserving rent to one only, yet it shall enure to both. But if the lease had been indented, the reservation should have been good to him only to whom it was made, and the other should have taken nothing.—The reason of the difference is this: where the lease is by deed-poll, or by parol, the rent shall follow the reversion, which is jointly in both lessors: and the rather, because the rent being something given to the joint-tenant to whom it is reserved in retribution for the land, he ought to be seised of the rent in the same manner as he is of the land demised, which is equally for the benefit of his companion and himself; but where the lease is by deed indented, they are estopped to claim the rent in any other manner than it is reserved by the deed, because the indenture is the deed of each party, and no man thall be allowed to recede from his own solemn act (a).
(«) Com. Dig. tit. Rent. (B. 5.)
(J) Sacheverell v. Froggatt. 3 Saund. 361
3*8. S. C. » Lev. 13. Sir T. Raym. 113.
l Vent. 148-161. a Keb. 798-819-833
(*) Doe d. Lancashire v. Lancashire. 5 T. R. 49-60-61. Doe d. Clarke v. Clarke, a H. Bl. 399. Beale v. Beale. 1 P. Wmv
(f) Oates v. Frith. Hob. 13a
Q>) Co. Lit. H3. b. U4- a.
So, if two joint tenants let by deed to A. rendering to them ior. per ann. and only one seal the deed, the demise shall be but of a moiety, rendering only 5/. per ann. (3).
If a rent be payable yearly without saying "during the said term," yet the payment must be made every year during the continuance of the lease (c).
If therefore a lease be made for years, provided that the lessor shall pay for it at Michaelmas and Lady-day 10/. by equal portions "during the term," though this rent is not made payable yearly, yet the law construes it to be so, because it is payable at the two feasts during the term, and then consequently it must be paid yearly; for if there be any omission of the payments in any one year during the lease, it is not paid at the two feasts during the term (s ).
So, if a man demise for five years, rendering tool. to be paid by equal portions during the term, it shall be paid yearly, though that word was omitted (b).
If a lease be made rendering rent at two usual feasts of the year, without specifying what feasts, the law construes such payments to be made at Michaelmas and Lady-day, because those are the usual days appointed in contracts of this nature for payment (c).
So, if a man grant a rent of 10/. to another payable at the two usual feasts of the year, this shall be intended by equal portions, though not so mentioned in the deed; because where there are two several days appointed for payment, it is the most equal construction, that a moiety of the rent shall be paid at each day (r).
If a man make a lease to another the 6th day of August, rendering yearly the rent of 40/. at two terms of the year, viz. at Lady-day and Michaelmas, by equal portions, though in this case, by the appointment of the parties, Lady day be the first term mentioned, yet the first payment shall be made at Michaelmas ensuing the date of the lease; for without such transposition of the words of the deed, the intention of the parties could never be fulfilled, because the rent is reserved annually, and the lessor would lose the profits of one half year if the rent were not payable the first Michaelmas; and the lessee must enjoy the land from the date of the lease to the first Michaelmas without
paying any thing; and so likewise from the last Lady-day of the term to the expiration of it; because though the rent ended in August, yet the payment was not to be made till the Michaelmas following, before which time the lease expired (a).
So, if a man make a lease the 1st of May, reserving rent payable quarterly: this shall be intended quarterly from the making of the lease; for if the beginning of the quarter should be construed to be any other day than the date of the lease, the lessor would lose the profits of his land for some time, and consequently not have quarterly payment made during the continuance of the lease (a).
A rent was reserved half yearly from Michaelmas; an action brought for half a year's rent ending the 25th day of March, which was not half a year from Michaelmas; and the rent being reserved half yearly without mentioning any day, there must be a full half year before rt is due; but otherwise, where it is made payable at such and such feasts, quarterly or half yearly; there through the quarter or half year in reality be not then expired, yet, as to the reservation and payment, it is (*).
If rent be reserved quarterly or half yearly, each apportionment of rent is a distinct debt (c).
Where there are special days of payment limited upon the reddendum, the rent ought to be computed according to the reddendum, and not according to the habendum: but where the reservation is general, as half yearly or quarterly, and no special days are mentioned, there the half year or quarter must be computed according to the habendum (c).
If tenant in fee make a lease for years to begin at Michaelmas, rendering F 00/. per annum at Michaelmas and Lady-day, or within ten days after every feast"s it seems to be the better opinion that the rent is due the last Michael mas-day of the term, without any regard to the ten days; for the reservation being annual, at the two feasts, or within ten days, it shall be construed to be at the end of every ten days during the term, as most agreeable to the design of the contract; and therefore the law rejects the ten days after the last feast, because the term ending at Michaelmas, there cannot be ten days after it during the term, for payment of the rent. This construction is the more reasonable, because to give the lessee his election to make the last payment either at Michaelmas or ten days after, were to put it in his power to avoid payment of the last half year's rent: for if it could be construed not to be due till the end of the ten days, the lessor could never oblige him to pay it, because then the term would be ended before the rent became due; for the addition of the ten days was only to enlarge the time of payment, but not to prevent the payment, or to remit any part of the rent (a).
(*) Gilb. on Rents, 50-51.
Foster, Cro. Jac. 1*7.
If a man, possessed of a term of one hundred years, make a lease for fifty, reserving rent to himself and his heirs, this rent determines at his death; for his heir cannot have it, because he cannot succeed to the estate, it being but a chattel interest, to which the rent, if it continue after the life of the lessor, must belong; and the executors cannot have it, because there are no words to carry it to them (b). I would however form a part of the residuary estate, it is conceived, and be assets in the hands of the executor or administrator: and this construction is warranted by Lord Hale expressly in the case cited. For a term of years, being a chattel real, is assets in the hands of the executor or administrator; and if such be the nature of the thing demised, the rent reserved upon it will of course accompany its principal, and not go to the heir (c).]
Where, however, an inheritor reserves rents, upon a lease for years, this shall not go to the executor, but to the heir, with the reversion; other than arrearages of it behind at the death of the testator (d).
Therefore where the lessor died upon Michaelmas-day between three and four o'clock in the afternoon, before sun-set, the rent being reserved payably, on Michaelmas-day, the question was, whether the executor or the heir, or, which is the same, the jointress of the lessor, should have the rent? It was decreed that the rent should go to the heir or jointress, because at the time of the death of the lessor, there was no remedy nor means to compel the payment thereof (e).
Under an agreement to let a house for a year, the rent to commence at Michaelmas, and to be paid three months in advance, such advance to be paid on taking possession. Semite this stipulation relates to the first quarter's rent only (/).
apportionment of rent.—At common law, rent cannot be apportioned, neither can a rent-charge, or rent-seek (g), but the reversioner becomes entitled to the accruing rent from the rent-day, antecedent to the decease of the tenant for life, whose representative was entitled only to the arrearages due at some rent-day before the death of the testator or intestate: for the law does not apportion rent in point of time, neither does equity (h).
If, therefore, a tenant for life made a lease for years, and died the day before the rent was due, (which is not payable till the last moment of the day on which it is expressly reserved in the lease,) the rent was lost both to the executor and the reversioner, and the law being so, equity would not relieve (a).
(a) Thomkinsv. Pinccnt. 7 Mod. 97. S.C. 2 Ld. Raym. 819. I Salk. 141. Barwick v. Foster. Cro. Jac. MS.
(i) Gilb. en Rents, 66.
(O Sacheverell v. Froggatb Vent 161. Com. Dig. tit. Rent. (B, j.)
(<0 Went. off. Ex. 33.
(r) Lord Rockingham v. Oxendcn. * Salk.
578. Duppa v. Mayo. I Saund. 176-278.
(f) Holland v. Palser. a Star. l6l.
(g) Co. Lit. P. 147. b.
(4) Countess Plymouth v. Throgmorton. 1 Salk. 65. Emott v. Cole. Cro. Eli*. MS. Mocatta v. Murgatroyd. I P. Wms. 39*. Edwards v. Countess Dowagtr Warwick. % P. Win*. 17i-6.
The strict adherence to this rule of law was productive therefore of a very manifest and grievous injustice. This however has been in a great degree remedied by the statute 11 G. 2 c 19. s. 15. which after reciting, that Whereas where any lessor or landlord having only an estate for life, in the lands, tenements or hereditaments, demised, happens to die before, or on the day, on which any rent is reserved or made payable, such rent or any part thereof, is not by law recoverable by the executors or administrators of such lessor or landlord ,- nor is the person in reversion entitled thereto, any other than for the use and occupation of such lands, tenements, or hereditaments, from the death of the tenant for life, of which advantage hath often been taken by the under tenants, who thereby avoid paying any thing for the same: enacts that, Where any tenant for life shall happen to die before or on the day on which any rent was reserved or made payable upon any demise or lease of any lands, tenements, or hereditaments which determined on the death of such tenant for life, the executors or administrators of such tenant for life shall and may, in an action on the case, recover of and from such under-tenant or under-tenants of such lands, &c. if such tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion of such rent according to the time such tenant for life lived, of the last year or quarter of a year, or other time in which the said rent was growing due as aforesaid, making all just allowances or a proportionable part thereof respectively.
In a leading case on the above statute, (in which Lord Hardwicke inclined to extend the remedy to the representatives of a tenant in tail whose lease determined with his life,) the facts were these: Tenant in tail, remainder to the defendant in fee, leased for years, and died without issue a week before the day of payment of the half year's rent. The lessee at the day paid all the half year's rent to the defendant. The executor of the tenant in tail brought his bill for apportionment of the rent. By the L. C. Hardwicke, this point has never been determined; but this is so strong a case that I shall make it a precedent. There are in it two grounds for relief in equity: the first arises on the statute of the 11 G. 2. the second arises on the tenant's having submitted to pay the rent to the defendant. The relief arising upon this statute, is either from the strict legal construc, or equity formed upon the reason of it. And here it is proper
(«) tfijr v. Palmer. a P. Wro*. Joi.