Nature and Annuities in Incidents of general. Difference be and a bequest of a rent. which the stat. 4 Geo. 2, c. 28, s. 5, has extended the right of distress: Bradby, 89; Buttery v. Robinson, 3 Bing. 392. See also Saward v. Anstey, 10 J. B. Moore, at p. 60; yet it is usual to give such an express power by the will since the statute. There is, however, one considerable difference tween a devise between the devise of a freehold estate, or a freehold rent, and the bequest of a chattel interest: for a devise vests absolutely by the testator's will, but the interest of the legatee must await the executor's assent to the bequest; and therefore, before such assent, the interest remains in the executor, and consequently the legatee cannot distrain, although an express power of distress be given by the will: Toller's Law of Executors, 306, 307. This assent may be either express or implied; but it must relate to the particular subject of the legacy. Thus, if a lessee for years bequeath a rent to A., issuing out of the land, and bequeath the land to B., the executor's assent that A. should have the rent, is no assent that B. should have the land, because the rent and the land are distinct legacies : Gough v. Hayward, Bridgm. at p. 55. But, under special circumstances, an executor's assent to one legacy may enure to another; as, if the case last mentioned be reversed, the executor's assent that B. should have the land, seems to imply his assent that A. should have the rent: Toller on Executors, 310, where it is said, "As it was the testator's intention that B. should hold the land subject to the rent to A., the executor's assent to B.'s having the land shall, in conformity to the will, be construed an assent to the legacy to A.:" Went. Off. Ex., ed. 1829, 428; Toll. Ex. 310; Welchden v. Elkington, Plowd. 521; 1 Roll. Abr. 620 (E.), pl. 3; Godolphin's Orphans' Legacy, 360, 4th ed. See also Williams on Executors, 1378. Power of dis tress usually ing a rent. Although the stat. 4 Geo. 2, c. 28, s. 5, has given on creat- given a remedy by distress for recovering a fee-farm rent, as a rent seck, when there is no power of distress, yet as a distress is not incident to this rent by the common law, it was, until recently, usual to give an express power of distress, and thereby make it a Nature and Annuities in Incidents of general. sary on creat rent-charge: on creating a fee-farm rent or a rent for life or lives out of freehold lands; or a rent for years out of a freehold, and such a power of distress was invariably given on creating a rent for years, Power of disto be issuing out of a freehold estate, or on creating tress necesa rent for life, or years, or for years determinable ing a rent on a life or lives, to be issuing out of a chattel out of a chatinterest. But now the insertion of a power of distress in a grant of an annuity or rent-charge is rendered unnecessary by the Conveyancing and Law of Property Act, 1881, by sect. 44 of which it is enacted: "(1) Where a person is entitled to receive out of any land (i), or out of the income of any land, any annual sum, payable halfyearly or otherwise, whether charged on the land, or on the income of the land, and whether by way of rent-charge or otherwise, not being rent incident to a reversion, then, subject and without prejudice to all estates, interests, and rights having priority to the annual sum, the person entitled to receive the same shall have such remedies for recovering and compelling payment of the same as are described in this section, as far as those remedies might have been conferred by the instrument under which the annual sum arises, but not further. "(2) If at any time the annual sum or any part thereof is unpaid for twenty-one days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears thereof, and all costs and expenses occasioned by non-payment thereof, may be fully paid. "(5) This section applies only if and so far as a contrary intention is not expressed in the instrument under which the annual sum arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained. "(6) This section applies only where that instrument comes into operation after the commencement of this Act." tel interest. Remedies for recovery of charged on annual sums land. If the testator by his will specifically bequeath his Executor reversionary interest in the term, it is necessary that train for ar (i) By sect. 2 of the Act, "land" includes "land of any tenure." should dis Incidents of Annuities in general. rears of rent before he assents to a bequest of the Nature and his executor should distrain for the arrears, before his assent to the legacy; as the reversion will thereby be vested in the legatee; vide ante, p. 670; and being thus divested out of the executor by his own assent, it should seem that he can no longer distrain for the arrears incurred in his testator's lifetime, although he may have an action on the contract against the lessee. But where a term of years vests in executors or administrators, they may of course distrain for the rent accruing in their own time, as if they were entitled to it in their own right. term. A distress may be made under a power, al though not the day it becomes due. A distinction is taken between a power to re-enter, or a nomine pænce, and a power to distrain; as where a rent is granted payable, &c., and in default of demanded on payment, if it be demanded, the grantee may distrain. In this case it is held not to be necessary to make a demand on the day the rent becomes due, as in the case of a re-entry, or a nomine pœnæ, where the contrary is not stipulated, but he may demand the rent at any time after, to enable him to distrain: Co. Litt. 202, a., 144, a.; Maund's case, 7 Rep. 28, b.; Foster v. Wandlass, 7 T. R. 117; Wms. n., 1 Saund. 287, d.; Gilb. Rents, 73, 79, 83; even although the land should be in possession of a stranger: Umphery v. Damyon, 1 Buls. 181. See as to this point, infra, tit. LEASES. In Doe d. Biass v. Horsley, 3 Nev. & M. 567, it was held, that a devisee of a rent-charge, with power of entry and perception, in case the rent should be in arrear for a certain time, might, upon the rent falling in arrear, maintain ejectment, without previously demanding the rent, on the ground that it was no forfeiture, but a mere right to enter, and receive the rents until the arrears were satisfied. See Pierson v. Sorrel, 2 Show. 185; Vin. Abr. Demand (B.) 8. Demand. A power of distress not premises alone. When an annuity was granted, to be issuing out usually given of a copyhold estate, it was not usual to give a power on copyhold of distress; because it has been conceived that a copyholder cannot grant such a power. However, Lord Coke expressly says, that such a rent-charge extends as well to estates by the custom, as to estates at the common law: Co. Litt. 185, a. And it seems that such a power of distress is good against every person claiming under the grantor, but not against Nature and the lord, who claims by a title paramount. See Annuities in Gilb. Ten. 297; 2 Watk. Cop. 63, 64. And it would seem that the statutory remedies given by sect. 44 of the Conveyancing Act, 1881, will have the same limited operation in the case of rent-charges issuing out of copyholds. See sub-sect. (1), ad fin. For more as to the remedy by distress, vide infra, tit. LEASES. Incidents of general. entry. 3. By Entry.]-In addition to the power of dis- Power of tress, it was formerly the practice to give a power of entry on the lands to the grantee of an annuity or rent-charge and his representatives, on default in paying the annuity or rent-charge for a certain number of days. But now by sect. 44 of the stat. 44 & 45 Vict. c. 41, it is enacted that, as regards instruments coming into operation after the 31st December, 1881, "(3) If at any time the annual sum or any part thereof is unpaid for forty days next after the time appointed for any payment in respect thereof, then, although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possession of and hold the land charged or any part thereof, and take the income thereof, until thereby or otherwise the annual sum and all arears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by non-payment of the annual sum, are fully paid; and such possession when taken shall be without impeachment of waste." peachable for Where the grantor himself is impeachable for Where waste, a provision that the possession shall not be grantor im without impeachment should be inserted in the waste. instrument creating the annuity. Although generally a right of entry will pass to the assignee of a rent, there must be clear evidence of the intention to annex such a right to the rent into whatever hands it comes; and therefore where R. devised a rent-charge to his widow during her widowhood, with power to her to enter, &c., and after her marriage the rent to be paid to C., his executors, administrators, and assigns; and upon the B.-VOL. I. X X Incidents of Annuities in general. Nature and marriage of the widow, C. received the rent during his life, and died without bequeathing it; it was held that his executor could not enter or bring ejectment on non-payment of the rent: Hassell v. Gowthwaite, Willes, 500. Power of entry not extended to copyholds. Term of years to secure annuity. It has been considered that the power of entry hitherto ordinarily inserted in annuity deeds cannot extend to copyholds; because, first, copyholds are not within the Statute of Uses; Gilb. Ten. 182; Co. Cop. s. 54, Tr. 124; Noy's Max. 319, 9th ed.; secondly, the tenant has no power to convey a copyhold estate except by surrender, according to the custom; for if he had, the lord would have a tenant brought into the estate without his admittance or consent: Gilb. Ten. 181, 185. Inasmuch as the remedies given by the 44th section of the Conveyancing Act apply only "as far as those remedies might have been conferred by the instrument under which the annual sum arises, and no further" (sub-sect. 1, ante, p. 671), it would appear that copyholds are not within the statutory powers of entry. The 44th section of that Act also does away with the necessity for inserting in annuity deeds a limitation to trustees for a term of years to secure the annuity by providing that in case of default in payment as before mentioned (ante, p. 671): "The person entitled to the annual charges, whether taking possession or not, may also by deed demise the land charged, or any part thereof, to a trustee for a term of years with or without impeachment of waste, on trust by mortgage, sale, or demise, for all or any part of the term of the land charged, or of any part thereof, or by receipt of the income thereof, or by all or any of those means, or by any other reasonable means, to raise and pay the annual sum and all arrears thereof due or to become due, and all costs and expenses occasioned by non-payment of the annual sum, or incurred in compelling or obtaining payment thereof, or otherwise relating thereto, including the costs of the preparation and execution of the deed of demise, and the costs of the execution of the trusts of that deed; and the surplus, if any, of the money raised, or of the income received, under the trusts of that deed shall be paid to the person for the time being entitled to the land therein comprised in reversion immediately expectant on the term thereby created." (Sub-sect. 4.) |