testator's death, will prevent an escheat, 3 Cru. Dig. 440, s. 21, 2nd ed., so it seems, by analogy, that a devise will prevent the rent from sinking into the land. But it seems there must be an express devise of the rent, and not a mere authority to sell: Reeve v. The Attorney-General, 2 Atk. 223, sed vide contra, Lord Nottingham's MS. n., Co. Litt. 236 a. (1). Nature and Annuities in Incidents of general. charge on tee, without heirs. The reason why the grant of a rent out of lands Determinato a man and his heirs determines on his death tion of rentwithout heirs, is, because such grants are, as it is death of grantermed in the law-books, against common right, Co. Lit. 147, b.; that is, they were against the policy of the feudal structure: Gilb. Rents. 133. For, in their original creation, they were against the reason and policy of that law; since they were so far from contributing to the strength of the kingdom, that they really weakened it, because the tenant, whose land was subject to such charge, was the less able to provide himself for the field, or to perform the duties of the feudal or military tenure; and the grantee of a rent-charge was under no obligation to attend the grantor in the wars, or venture his life for the public, on account of the benefit he received from the grant, as the person who took lands under a feudal donation was obliged to do: Noy's Tenures, 296, 6th ed. It is upon this principle, that when there is not a limitation over in fee, a tenant in tail of a rent acquires, by his recovery (or rather now, by his enrolled conveyance), no more than a base fee, determinable on failure of his issue. But if there be a limitation in fee, after the particular limitation in tail, the grantor has substantially limited the rent in fee; and therefore it is doing him no injustice that the donee should be enabled by his act to acquire an estate in fee simple: Butl. n., Co. Litt. 298, a. (2). Apportionment of Rents.]-At common law rent was regarded as not accruing from day to day, but as becoming payable only if the full period in respect of which it was made payable should be accomplished: Clun's case, 10 Rep. 126 a; Tud. L. C. Conv. 284. So if a lessor died before the day fixed for payment, the rent became payable, not to his per Apportion ment of rents in respect of time. Incidents of general. Stat. 4 & 5 Nature and sonal representatives, but to the heir, devisee or reAnnuities in mainderman, as the case might be: Lord Rockingham v. Penrice, 1 P. Wms. 177. By the stat. 11 Geo. 2, c. 19, s. 15, rents were made apportionable, in the case of demises, on the death of tenants for life, and the provisions of that Act were extended by the stat. 4 & 5 Will. 4, c. 22, to the representatives of Will. 4, c. 22. lessors, and so as to render apportionable all rentscharge and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description in the United Kingdom of Great Britain (o) and Ireland, made payable or coming due at fixed period under any instrument that shall be executed after the passing of that Act, or being a will or testamentary instrument that shall come into operation after the passing of that Act (sect. 2). By sect. 3 it is provided that the Act shall not apply to any case in which it shall be expressly stipulated that no apportionment shall take place, or to annual sums made payable, or policies of assurance of any description. In order to exclude apportionment under stat. 4 & 5 Will. 4, c. 22, there must be either an express direction that apportionment shall not take place, or a gift in terms so explicit that apportionment is clearly impossible consistently with the gift: Tyrell v. Clark, 2 Drew. 86. A jointure rentcharge, terminating with the life of the jointress, is apportionable under this Act: Sutton v. Ennis, 4 Ir. Rep., Eq. 325. See also Trimmer v. Danby, 23 L. J. (N.S.), Ch. 979. Where a grant of a rent-charge by a tenant for life contained an express apportionment clause, in the event of the death of the grantee between two gale days, it was held that the Court could not imply an intention that there should be an apportionment on the death of the grantor: Leathley v. Trench, 8 Ir. Ch. Rep. 401. Further observations with regard to the operation of this Act will be found, infra, tit. LEASES. (0) This Act passed on the 16th June, 1834. It applies to Scotland: Fordyce v. Bridges, 1 H. L. Ca. 1. It has been repealed as to Ireland by the Landlord and Tenant Amendment Act, 1860 (23 & 24 Vict. c. 154), sect. 104, and Schedule B. See as to apportionment in Ireland, sects. 49 and 50 of that Act. By the Apportionment Act, 1870 (33 & 34 Vict. Nature and c. 35), it is enacted that:- Incidents of general. Periodical &c. Sect. 2. "From and after the passing of this Act* all rents, Apportionannuities, dividends, and other periodical payments in the nature ment Act, of income (whether reserved or made payable under an instru- 1870. ment in writing or otherwise), shall, like interest on money lent, payments to be considered as accruing from day to day, and shall be appor- accrue from tionable in respect of time accordingly." day to day, Sect. 3. "The apportioned part of any such rent, annuity, 1st August, dividend, or other payment shall be payable or recoverable in 1870. the case of a continuing rent, annuity, or other such payment Apportioned when the entire portion of which such apportioned part shall part to be form part shall become due and payable, and not before; and next entire in the case of a rent, annuity, or other such payment determined portion due. by re-entry, death, or otherwise when the next entire portion of the same would have been payable if the same had not so determined, and not before." payable when remedies for Sect. 4. "All persons and their respective heirs, executors, Persons shall administrators, and assigns, and also the executors, administra- have the same tors, and assigns respectively of persons whose interests deter- recovering mine with their own deaths shall have such or the same remedies apportioned parts as for at law and in equity for recovering such apportioned parts as entire poraforesaid when payable (allowing proportionate parts of all just tions. allowances) as they respectively would have had for recovering such entire portions as aforesaid if entitled thereto respectively; provided that persons liable to pay rents reserved out of or charged on lands or other hereditaments of any tenure, and the same lands or other hereditaments, shall not be resorted to for any such apportioned part forming part of an entire or continuing rent as aforesaid specifically; but the entire or continuing rent, including such apportioned part, shall be recovered and received by the heir or other person who, if the rent had not been apportionable under this Act, or otherwise, would have been entitled to such entire or continuing rent, and such apportioned part shall be recoverable from such heir or other person by the executors or other parties entitled under this Act to the same by action at law or suit in equity." Sect. 5. "In the construction of this Act the word 'rents' in- Interpretacludes rent-service, rent-charge, and rent-seck, and also tithes tion of terms. and all periodical payments or renderings in lieu of or in the nature of rent or tithe. The word annuities' includes salaries and pensions Sect. 6. "Nothing in this Act contained shall render appor- Act not to tionable any annual sums made payable in policies of assurance apply to poliof any description." cies of assurarce; Nature and Incidents of Annuities in general. nor where stipulation made to the contrary. Application of INTEREST ON Sect. 7. "The provisions of this Act shall not extend to any case in which it is or shall be expressly stipulated that no apportionment shall take place." These provisions appear to render the insertion in an annuity deed of any express apportionment clause no longer absolutely necessary (p). This Act applies to specific as well as to residuary devises or bequests; Pollock v. Pollock, L. R., 18 Eq. 329; Hasluck v. Pedley, 19 Eq. 271; and to wills made before the Act, but confirmed by codicils thereto made after the Act: Capron v. Capron, L. R., 17 Eq. 288; Constable v. Constable, 11 Ch. D. 681. Indeed, in the case of Re Cline's Estate, L. R., 18 Eq. 213, Malins, V.-C., held that the Act applies to all instruments whether coming into operation before or not till after the operation of the Act: Hasluck v. Pedley, ubi supra. But Lord Selborne, C., took the opposite view: Jones v. Ogle, L. R., 8 Ch. 192. The Act applies to the rent of a lease assigned over by a trustee in bankruptcy; Swansea Bank v. Thomas, 4 Ex. D. 94; but not to profits of a trading partnership; Jones v. Ogle, L. R., 8 Ch. 192; nor of a newspaper carried on by trustees: Re Cox, 9 Ch. D. 159. Interest on Arrears of Annuity.]-The early decisions as to the allowance of interest upon arrears of an annuity, down to the case of Creuze v. Lowth, 4 Br. C. C. 157, 316; Creuze v. Hunter, 2 Ves. jun. 157, S. C., are not to be relied on as authorities. In that case Lord Loughborough refused to give interest on arrears of an annuity in lieu of dower from the time the master's report was confirmed. And in recent times the Court has generally refused to allow interest on arrears of annuities, whether given by will; see Taylor v. Taylor, 8 Ha. 120; Torre v. Browne, 5 H. L. Ca. 555; Booth v. Coulton, 2 Giff. 514; or by deed; see Mellish v. Mellish, 14 (p) The insertion of apportionment clauses in annuity deeds and bonds is however still common in practice, and is perhaps to be recommended as declaratory of the rights and duties of the parties. These clauses have accordingly been retained in the following precedents, but enclosed in brackets, so that they may be omitted if it is so desired. Incidents of general. Ves. 516; Booth v. Leicester, 1 Kee. 247. Some- Nature and times, under exceptional circumstances, the Court has allowed interest on such arrears, as where the annuity was secured by a bond with a penalty; see Newman v. Auling, 3 Atk. 579 (the order in which is given in Seton, p. 960); but not always even in this case: Lainson v. Lainson, 18 Beav. 7. See also Earl of Mansfield v. Ogle, 4 De G. & J. 38; Martyn v. Blake, 3 Dr. & W. 125; Re Powell, 10 Ha. 134; Blogg v. Johnson, L. R., 2 Ch. 295. Numerous cases in which the Court has, in the exercise of its discretion, under the circumstances of the particular case, allowed or refused interest on arrears of an annuity, are collected in Seton on Decrees, at p. 962, to which the reader is referred for further information on the subject. The stat. 3 & 4 Will. 4, c. 42, s. 28, enabling juries to allow interest, does not affect the discretion of the Court: Re Powell's Trust, 10 Ha. 134; Earl of Mansfield v. Ogle, 4 De G. & J. 38; Spartate v. Constadini, 20 W. R. 823. See Hyde v. Price, 8 Sim. 578, and Willcocks v. Butcher, 16 Sim. 366. In Hyde v. Price, an annuity had been granted in Hyde v. Price. 1795 for the life of the grantor, secured by his bond and a judgment. The grantor died intestate in 1810, leaving large arrears due on the annuity, and assets, consisting of a fund in Court, which accumulated from that time. In 1834, administration was taken out to the grantor, and the bill was filed. Interest at five per cent. was given. judgment. Interest could not generally be recovered at law Interest on a upon a judgment, Jarrold v. Rowe, 8 Price, 582, nor in equity, unless there were some special circumstances or hardship, &c., which a mere delay, caused by the progress of the cause, did not amount to; Lewis v. Morgan, 3 You. & J. 230, 394; Berrington v. Evans, You. 276; or unless the debtor was applying for relief against the creditor. But now, by the 1 & 2 Vict. c. stat. 1 & 2 Vict. c. 110, s. 17 (infra, tit. MORTGAGES), 110, s. 17. interest at four per cent. from the time of entering up the judgment as against the debtor, and from the time of registering the judgment as against the interests of purchasers and mortgagees, with notice B.-VOL. I. Y Y |