ecutor or administrator, although, strictly speaking, not due, as has been seen, until midnight. But the heir has no pretence to claim it, the lessor being only tenant for his life; so it must go to his personal representative, or be lost; and therefore somewhat of the usual rigor is relaxed in order to prevent that result. (Rockingham v. Penrice & al, 1 P. Wms. 180; Strafford v. Wentworth, Ib.; Bac. Abr. Rent (H).)

21. When Lessor dies before the day when the Rent becomes due; W. C.

1m. Doctrine at common law.

No rent is to be paid since the last rent-day, there being no remedy as to any apportionment in point of time, or of periodical payments, either in law or equity, according to the maxim annua nee debitum judex non separat. (1 Th. Co. Lit. 476, & n (P, 1); Bac. Abr. Rent (H); Clun's Case, 10 Co. 128 a; Jenner v. Morgan, 1 P. Wms. 392; Ex-parte Smyth, 1 Swanst. 339-40, note.) The principle of this maxim is, that the contract for such periodical payments is entire, and that nothing is due by virtue of it unless the service, or consideration, or time be fully completed, it being, indeed, no more than an instance of the general doctrine that entire contracts cannot be apportioned. (Ex-parte Smyth, 1 Swanst. 338, n (a).)

A similar principle is applied to all periodical payments; e.g., annuities, hires, &c., but not to interest, which, although payable at intervals, is due from day to day, de die in diem. (Edwards v. Warwick, 2 Ves. 672; Ex-parte Smyth, 1 Swanst. 349.)

2. Doctrine in Virginia, by Statute.

Rent (as also all other periodical payments under like circumstances) is apportioned in point of time. The statute provides that "on the determination, by death or otherwise, of the estate or other thing, from or in respect of which any rent, hire, or money coming due at fixed periods, issues or is devised, or on the death of any person interested in such rent, hire or money, the person, or the personal representative or assignee of the person who would have Been entitled, but for such death or determination, to the rent, hire or money coming due at any such period, unless it be expressly provided that no apportionment

shall take place, shall have a proportion thereof, according to the time which shall have elapsed of the time of which the said rent, hire or other money was growing due, including the day of such death or determination, deducting a proportional part of the charges." (V. C. 1873, c. 136, 1, 3.)

3. The person to whom Rent in arrear at lessor's death, is payable.

It is payable always to the lessor's personal representative, or assignee. (1 Lom. Ex'ors, 488;

V. C. 1873, c. 134, § 8.)

21. Doctrine as to the person to whom rent not due and in arrear at the lessor's death is payable.

It is payable to him who has the reversion. Hence, if the lessor were seised in fee-simple, as upon his death the reversion would pass to his heir or devisee, so the rent is payable to the heir or devisee; and if the lessor were himself possessed only of a term for years, as upon his death the reversion would devolve on his personal representative, so the rent is payable to such representative. (Gilb. Rents, 66-'7; Bac. Abr. Rent, (H).)

98. The Estate which may be had in a Rent, and the Incidents thereof; W. C.

1h. The Estate in a Rent-service.

In Virginia, the estate in a rent-service can be nothing more than an estate for life, for it cannot be greater than the estate in the land for which the rent is a return; and no estate with us, larger than a lifeestate, is capable of having a reversion incident to it, which it will be remembered must exist, in order to constitute a rent-service.

In England, the largest estate possible in a rentservice, is an estate-tail; at least since the statute quia emptores (18 Edw. I, c. 1). Before that statute, upon grants (or rather sub-infeudations) in fee-simple, reserving a rent, there was a tenure of the grantor, and therefore such rent, though in fee-simple, was yet a rent-service; but since 18 Edw. I, the tenure is not of the grantor, in such case, but of the chief lord of the fee, and therefore there can be no fee-simple rent-service there, any more than in Virginia; not in England, because upon a grant in fee-simple the tenure is not of the grantor; not in Virginia, because in the like case the tenure is of nobody.

2h. The Estate in a Rent-charge or Rent-seck.

The estate in a rent-charge or rent-seck may be either in fee-simple, for life, or for years.

105. The Apportionment of Rents.

The distinction most needful to be noted in connection with the apportionment of rents, is that between rents reserved, or proper rents, and rents granted, or improper rents. Rent reserved implied a new tenant introduced into the barony, perhaps into the State, thereby increasing the military strength of one or both of them. It was, therefore, viewed with great favor, as being in accordance with common right, i. e., the common good; and if any change afterwards occurred in the relation of the parties, to make it unreasonable and unjust to enforce the payment of the whole rent, a new arrangement, adapted to the new state of things, was easily implied, whereby the rent was either abated or divided (apportioned was the technical designation), as the circumstances suggested, and justice required.

Rent granted, on the other hand, so far from implying any addition to the military resources of the barony, plainly tended to weaken them. However able a tenant might be to perform the stipulated military service incident to the tenure of his lands, he was prima facie certainly less able when he had granted a rent, common, or any other easement, issuing out of those very lands, than he was before Such grants were therefore regarded with disapproval, although not actually prohibited; and hence, when, by the act of the parties, such a change in their relation had taken place as to make it unjust to enforce the grant in its integrity, the law declined to enforce it at all, unless in pursuance of new and express stipulations, having the effect of a new contract. The rent, common, &c., was in such case extinct. If, however, the change of relation occurred by the act, not of the parties, but of the law, or of God, a modification of the grant was implied, adapted to the new state of things.

Thus, if in case of rent reserved, the landlord afterwards takes back half of the land, the rent would be apportioned-i. e., abated one-half-without any new agreement. But if, in case of rent granted, the grantee of the rent purchase part of the land out of which it issues, the rent is, at common law, extinct. If, however, in the latter case, part of the land descends to the grantee of the rent (which is an act of the law), the rent will be apportioned according to the quantity remaining still in the hands of the grantor thereof. (1 Th. Co. Lit. 466, 463-24, 474; Gilb. Rents, 151 & seq.; Bac. Abr. Rent, (M).)

In pursuing the subject of the apportionment of rents, let us observe, 1), When the whole rent becomes extinet; (2), When the rent is apportioned; (3), When the rent is not apportioned, but the whole must be paid; and (4), The manner of making apportionment;

W. C.

1h. When the whole Rent is Extinct; W. C.

1. In case of Rent granted.

When the grantee of the rent acquires, by his own act, part or all of the land out of which the rent issues, the rent, at common law, is extinct, for the reason of feudal policy above stated; and not only is it extinct as a rent, but also as an annuity, although previously to thus dealing with it, it might, at the grantee's election, have been treated either as a rent or an annuity. (1 Th. Co. Lit. 463-'4; Id. 465; Bac. Abr. Rent, (M); Gilb. Rents, 152 & seq.)

In Virginia, it is provided by statute, that where the holder of a rent shall purchase part of the land out of which the same issues, the rent shall be apportioned, in like manner as if the same had come to him by descent; and where the holder of land, being part of the land out of which a rent shall be issuing, shall purchase such rent, or part thereof, the rent shall also be apportioned. (V. C. 1873, c. 136, § 4.) 2. In case of Rent-Reserved; W. C.

1. Eviction of grantee of land, by a stranger, from all of it, by title paramount.

The rent being in retribution for the land, and all of it being now lost by title paramount, the rent is of course extinct. (1 Th. Co. Lit. 468; Gilb. Rents, 148-'9; Clun's case, 10 Co. 128.)

2. Purchase by lessor, of part of the land, where the Rent is entire (e. g., a horse), and not pro bono publico.

Since one party or the other must suffer loss, it is laid on him who is supposed to be the most able to bear it, namely, the lessor, and whose immediate act as purchaser brought about the result. The rent is not apportioned, but is extinct. (1 Th. Co. Lit. 471; Gilb. Rents, 165.)

If the rent were entire, but pro bono publico (e. g., keeping a fortress), it is otherwise, as will be seen, and the whole rent must be paid. (Gilb. Rents, 166.)

3. Eviction of lessee by lessor, from part or all of the land.

The whole rent is suspended (however small a

part of the premises may have been resumed), until the possession is restored. (1 Th. Co. Lit. 470, & n (H. 1); Gilb. Rents, 178; Briggs v. Hall, 4 Leigh, 484.)

2h. When the Rent is apportioned; W. C.

1'. In case of Rent-granted; W. C.

1. Release of one part of the Rent to the Grantor of it.

1 Th. Co. Lit. 465.

2. Loss of part of the Land to the Grantor of the Rent, by breach of condition in law.

Thus, in case of a grant of Black-acre by A to Z for his life; and afterwards a grant by Z to A for life, of a rent issuing in equal parts, out of Blackacre & White-acre; Z conveys Black-acre, by feoffment with livery, in fee simple to X, thereby, at common law, forfeiting it to A, by breach of the condition in law, and A enters on Black-acre for the forfeiture, the rent is abated in proportion, because it would be unjust not to abate the rent in proportion to the land out of which it issued, that has come to the possession of the grantee of the rent, who claims the land under, and not paramount to the grantor; and if, on the other hand, it were held to be extinct, the grantor of the rent would have had advantage from his own wrong. (1 Th. Co. Lit. 469; Gilb. Rents, 162.)

3. Acquisition of part of the Land by the grantee of the Rent, or of a part of the Rent, by the Grantor thereof by act of the Law.

1 Th. Co. Lit. 474, & seq.

W. C.

11. Descent of a part of the Land, out of which the Rent issues, to the Grantee of the Rent.

The rent shall be apportioned according to the value of the land, lest the grantee should be discouraged to take upon him the burden of the feud, by the loss of the entire rent; and the rather as he did not concur in the act. (Gilb. Rents, 156; 1 Th. Co. Lit. 4745.)

21. Descent of part of the Rent to the Grantor thereof.

Here, also, the rent shall be apportioned, for else the inheritance descending, which is the act of the law, and meant beneficently, might prove a detriment to the third person, who is entitled to the residue of the rent. (Gilb. Rents, 157; 1 Th. Co. Lit. 475.)