Incidents of

Annuities in general.

Nature and chaste life, or on resumption of cohabitation, was held to be provable. Baggallay, L. J., said: "Mudge v. Rowan and Parker v. Ince, were decisions on another statute, the words of which differed materially from those of sect. 31 of the Act of 1869 (m). I have no doubt that that section, and particularly the words in the latter clause of it, were introduced for the express purpose of meeting those decisions. Words more large and general it is impossible to conceive. They cover every species of contingency:" Ex parte Neal (C. A.), 14 Ch. D. 579. See also Ex parte Pearce (C. A.), 13 Ch. D. 262.

Value of an

by sale in case of bankruptcy.

When the valuation of an annuity dependent on a contingency has been made, the ascertained amount becomes provable once for all, and is not open to revision in the event of the annuitant's death before the amount is received: Ex parte Bates (C. A.), 11 Ch. D. 914.

It seems, that where the grantor of a rent-charge nuity raisable had become bankrupt, and the value was provable under the commission, the annuitant might obtain an order for sale as in the case of a mortgage, under 6 Geo. 4, c. 16, s. 54 (n). In Ex parte Slack, 1 Gl. & Ja. 346, upon petition of an annuitant, having a charge upon real estate, the land was ordered to be sold and the purchase-money was directed to be applied in payment of the costs of the application and sale, and then of the arrears due at the date of the commission, and the value of the annuity, the annuitant being at liberty to prove for any deficiency. See also Ex parte Webb, 2 Gl. & J. 29; Ex parte Fisher, Ibid. 102; Ex parte Price, 3 Madd. 132; Re Delves, Mont. 492. If the annuitant has a policy of insurance on the bankrupt's life, he cannot prove without submitting to a sale of the policy, the proceeds of which will be applied, first, in payment of the expenses, and of the premiums paid by the creditor, and then of the annuity: Ex parte Tierney,

(m) The words of the section referred to were very similar to those of sect. 37 of the Bankruptcy Act, 1883 (ante, p. 676), as regards debts and liabilities provable in bankruptcy.

(2) This was Mr. Jarman's opinion. See the 3rd ed. of this work, Vol. II. p. 51.

Mont. 78; Ex parte Varnish, 1 M., D. & De. G. Nature and

514.

Incidents of Annuities in general.

In Ex parte Price, 3 Madd. 132, where P. agreed to pay A. an annuity of 401. during his life, in con- Set-off. sideration of 4007.; and a bond and warrant of attorney were given to secure the same; and two years afterwards P. deposited a lease with A. as a further security; P. having become bankrupt, A. filed a petition, praying that it might be referred to the commissioners to value the annuity, and that the lease might be sold, and the produce applied in satisfaction of the arrears and value (after payment of costs), and that he might prove for the residue : Sir J. Leach, V.-C., granted the petition accordingly. An annuity creditor is entitled to set-off the value of his annuity against a debt due to the bankrupt : Ex parte Law, De G. 378.

See further, as to proof in bankruptcy in respect of annuities, Robson on Bankruptcy, p. 223 et seq.

EXTINGUISH

MENT OF

RENTS.

now barred by

Extinguishment of Rents.]-The Statute of Limitations of Jac. 1 did not apply to a rent-charge, and therefore could not be pleaded as a bar to a claim of Rent-charge arrears either at law or in equity: Cupit v. Jackson, the Statute of M'Clel. 505. But after a great lapse of time, with- Limitations. out demand, a release or extinguishment of the rent was presumed Eldridge v. Knott, Cowp. 214. The law on this subject is now regulated by the statutes, 3 & 4 Will. 4, c. 27, ss. 2 & 42 (as amended by 37 & 38 Vict. c. 57, ante, tit. ABSTRACTS), and 3 & 4 Will. 4, c. 42, s. 3. An action for arrears of a rent-charge granted by indenture may be brought within twelve years; Strachan v. Thomas, 4 Per. & D. 229; 4 Jur. 1183; and time runs from the last receipt. See Owen v. De Beauvoir, 16 M. & W. 547; De Beauvoir v. Owen, 5 Ex. 166; Lord Chichester v. Hall, 17 L. T. 121. Where land charged with a fee-farm rent was sold, and the vendors continued to pay the rent-charge to the person entitled thereto, who was unaware of the sale, it was held that there had been no discontinuance of receipt so as to bar his title: Adnam v. Earl of Sandwich, 2 Q. B. D. 485. The limitation prescribed by the stat. 3 & 4 Will. 4, c. 27, does not apply to an action on a collateral

Incidents of

general.

Nature and covenant for payment of a rent charged on land, Annuities in and the covenantee may recover damages for breach of the covenant, notwithstanding his right to recover the rent-charge is barred by the statute: Manning v. Phelps, 10 Ex. 59. See also Sims v. Strachan, 12 Ad. & E. 536.

Effect of release on unaccrued rent.

Release of actions, how construed.

in

As to the effect of releases upon rents, the early books present many distinctions. Thus, it is laid down that a release of all demands will extend to a rent-charge, or to a rent-service, parcel of a seigniory gross: Wilton v. Bye, Cro. Jac. 486. See 2 Roll. Ab. 408. While, on the other hand, it is clear that it will not extend to a rent incident to a reversion of lands, i. e., to a rent reserved upon an ordinary lease for years. Thus, where an action was brought on a lease for years, for a year's rent due at Lady-day, 1689, and the defendant pleaded a release of all demands, dated 18th Nov. 1688, it was held, that the release extended to discharge the first half-year's rent then overdue, but not that of the second or current half-year, which was then demandable: Stephens v. Snow, 2 Salk. 578. See also Henn v. Hanson, 1 Lev. 99; Ingram v. Bray, 2 Lev. 210.

It is clear that a release of all actions merely would not extend to a rent-charge or annuity: Tuke v. Cheek, Cr. El. 897; Diggs's case, Moore, 133; or at least would apply only to the arrears then actually accrued; 2 Roll. Ab. 404; as the word actions in these cases is construed as synonymous with existing causes of action: Shepp. Touch. 339. And, therefore, a release of all actions will not discharge a sum of money not due at the time, Co. Litt. 292; unless, indeed (according to a distinction more technical than solid, but much insisted on in the early cases), in the instance of a bond, which, being debitum in præsenti, though solvendum in futuro, it is said, is discharged by a release given before the day of payment appointed by the condition: Co. Litt. 291; Altham's case, 8 Rep. 153; Cage v. Acton, 1 Ld. Raym. at p. 519. Clearly, however, it would not extend to a covenant not then broken, there being no cause of action until a breach. See Hoe's case, 5 Rep. 70. Though it is not certain that all these distinctions would now be adopted, yet persons drawing releases

ought not to lose sight of them, but expressly qualify or enlarge the terms of the instrument so as to exclude doubt.

Nature and Incidents of

Annuities in general.

part of the

Under the old law if the owner of a rent-charge Rent-charge issuing out of twenty acres released all his right to extinguished one acre, the rent was extinguished in the whole: by a release of 2 Roll. Áb. 414; Co. Litt. 148; Shepp. Touch. 345. lands. And on the same principle, if the grantee of a rentcharge acquired as purchaser part of the land out of which it issues, the rent was gone in toto, "because the rent is entire and against common right, and therefore by purchase of part it is extinct in the whole, and cannot be apportioned; " Co. Litt. 148 a. ; but if the grantee of a rent-charge released part of the rent, such release operated pro tanto only, and did not extinguish the whole rent: 5 Bac. Ab. 694.

ment or ap

possession.

If a man had a rent-charge to him and to his heirs, Extinguishissuing out of certain lands, if he purchased any portionnent parcel of this land to him and to his heirs, all the by unity of rent-charge was extinct: Co. Litt. 147 b. And an acceptance of a devise of part of the lands was a purchase sufficient to cause such extinguishment: Dennett v. Pass, 1 Scott, 218. But if a man, who has a rent-service, purchased parcel of the land out of which the rent is issuing, this will not extinguish all, but only for the parcel: Gilb. Rents, 151, 152; Co. Litt. 148 a. For a rent-service in such case may be apportioned according to the value of the land. But if a man hold his land of his lord by the service, to render to his lord yearly, at a certain feast, a horse, a golden spear, or a clove, gilliflower, or the like; if in this case the lord purchase parcel of the land, such service is taken away, because such service cannot be served nor apportioned: Co. Litt. 147 b.; and see Noy's Tenures, 6, 7, 8, 292, 293, 294, 9th ed., Noy's Max. So, if the grantee of a rent-charge take a lease of the land for years, he shall not after the years are ended have his election to make this an annuity: Fulwood v. Ward, Poph. 86. So, wherever an annuity is granted for the Extinction of performance of any duty or service, and the grantee granted for refuses or neglects to perform it, the annuity becomes future serextinct Co. Litt. 204 a. If an annuity be granted vices, &c.

annuities

Incidents of

general.

Nature and to a man for keeping a park, and the game be not Annuities in preserved through his fault, that is an extinguishment of the annuity: Bro. Abr. Annuitie, pl. 49. Upon the same principle, if an annuity be granted pro decimis, and the grantee be unjustly disturbed of the tithes, the annuity ceases: for these being the express considerations of the annuities, they are thereby rendered conditional: Co. Litt. 204 a. So again, if an annuity be granted pro homagio et servitio, and the grantor disclaim the services in a writ of annuity, the annuity is extinct: Bro. Abr. Extinguishment, pl. 37. And if an annuity be granted so long as the grantee is benevolens, proferens, et amicabilis to the grantor, and the grantee labour to put the grantor out of service, it is a forfeiture of the annuity: Bro. Abr. Annuitie, pl. 35; and Double plea, pl. 100. See Mattock v. Kinglake, 1 Per. & D. 46.

A rent in fee does not escheat on

failure of

heirs, but

sinks into the land.

Express devise..

The doctrine of the extinguishment of rent-charges under the old law gave rise to great difficulties, and often was attended with serious inconvenience. And accordingly, by sect. 10 of the stat. 22 & 23 Vict. c. 35, it was enacted that :

"The release of a rent-charge of part of the hereditaments charged therewith shall not extinguish the whole rent-charge, but shall operate only to bar the right to recover any part of the rent-charge out of the hereditaments released, without prejudice nevertheless to the rights of all persons interested in the hereditaments remaining unreleased, and not concurring in or confirming the release."

A rent differs materially from land; because the old principles of the feudal law looked upon every modification of landed property, which was considered to be against common right, with a very jealous eye. Upon this principle, the law, in most instances, avoided giving by implication a continuance to the rent, beyond the period expressly fixed for its continuance. Thus, 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: Butl. n. Co. Litt. 298 a. (2); Vaugh. 39. And as a devise, though it only takes effect at the moment of the