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building lots, it being intended that all purchasers of such lots shall improve them, in accordance with such plan, for the common benefit of all. In such a case, the purchaser of any one lot might properly be allowed in equity to enforce a restrictive agreement entered into by a prior purchaser of another lot, as being an assignee of the common vendor, and as intended to be benefited thereby. But when the person seeking to enforce the agreement is one who purchased before, and not after, the purchase by the person against whom it is sought to enforce it, different considerations intervene. Though he might properly enforce the agreement made with his vendor before his purchase, he cannot be regarded as an assignee of the right to enforce an agreement made after his purchase. His right, therefore, to enforce a restriction upon the use of the land, must be based, not upon the agreement made by the subsequent purchaser, but rather upon the theory that each purchaser buying a lot with notice of a general plan of improvement impliedly assents thereto, and may therefore be compelled to comply therewith at the suit of the owner of any other lot, without reference to the order in which the lots may have been sold.25 In Massachusetts the enforcement of these restrictions upon the use of land in favor of one other than the original vendor of the land are exclusively cases in which a general building plan or uniform mode of use or improvement has been established and made a part of the particular conveyances or sales, either by express agreement or by representation or suggestion.26

But

25 De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329; Winfield v. Henning, 21 N. J. Eq. 188, 2 Gray's Cas. 502; Tallmadge v. East River Bank, 26 N. Y. 105, 2 Gray's Cas. 497; Barron v. Richard, 8 Paige (N. Y.) 351; Spicer v. Martin, 14 App. Cas. 12; Mac kenzie v. Childers, 43 Ch. Div. 265; Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632. See article by Edward O. Keasbey, Esq., in 6 Harv. Law Rev. 280.

26 Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632;

in other jurisdictions an agreement by a vendee of land is regarded as binding, in favor of the vendee, of other land without reference to the fact that it was or was not in pursuance of a general plan. 27

353. Defenses to enforcement.

If the original plan of improvement has been abandoned, or the character of the neighborhood has been changed so as to defeat the purpose of the covenant or agreement, it will not be enforced ;28 nor will the agreement be enforced if the party seeking its enforcement has been guilty of laches or acquiescence in defendant's violation of the agreement.20 But the fact that the person entitled to enforce the agreement has ac

Linzee v. Mixer, 101 Mass. 512; Tobey v. Moore, 130 Mass. 448; Sanborn v. Rice, 129, Mass. 387; Whitney v. Union Ry. Co., 11 Gray (Mass.) 359, 71 Am. Dec. 715; Sharp v. Ropes, 110 Mass. 381; Hills ▼. Metzenroth, 173 Mass. 423.

27 Clark v. Martin, 49 Pa. St. 289; Coudert v. Sayre, 46 N. J. Eq. 386; Hayes v. Waverly & P. Ry. Co., 51 N. J. Eq. 345; McMahon v. Williams, 79 Ala. 288. See Peck v. Conway, 119 Mass. 546, 2 Gray's Cas. 508.

28 Bedford v. Trustees of British Museum, 2 Mylne & K. 552; Peek v. Matthews, L. R. 3 Eq. 515; Trustees of Columbia College v. Thacher, 87 N. Y. 311; Duncan v. Central Passenger Ry. Co., 85 Ky. 525; Ammerman v. Deane, 132 N. Y. 355, 28 Am. St. Rep. 584; Page v. Murray, 46 N. J. Eq. 325; Coughlin v. Barker, 46 Mo. App. 54; Moore v. Murphy, 89 Hun (N. Y.) 175; Jackson v. Stevenson, 156 Mass. 496, 32 Am. St. Rep. 476. See Landell v. Hamilton, 175 Pa. St. 327, 177 Pa. St. 23.

* Sayers v. Collyer, 28 Ch. Div. 103; Knight v. Simmonds [1896] 2 Ch. 294; Whitney v. Union Ry. Co., 11 Gray (Mass.) 359, 71 Am. Dec. 715; Linzee v. Mixer, 101 Mass. 512; Payson v. Burnham, 141 Mass. 547.

So it was held that, if the owner of a lot had, by building a wall rendered a restriction upon the height of buildings on the next lot partially valueless to his lot, he could not enforce the restriction 80 as to prevent the construction of buildings no higher than the wall. Landell v. Hamilton, 177 Pa. St. 23.

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quiesced in its violation on isolated parts of the land sold will not prevent its enforcement by him or his assigns with respect to other parts.30

If the agreement was intended for the benefit of neighboring land and the owners thereof, the original promisee cannot, in derogation of the rights of his vendee, waive the agreement in favor of a vendee of another part of the land.31

80 German v. Chapman, 7 Ch. Div. 271; Knight v. Simmonds [1896] 2 Ch. 294; Linzee v. Mixer, 101 Mass. 513.

31 Spicer v. Martin, 14 App. Cas. 12; Coudert v. Sayre, 46 N. J. Eq. 886. And see Landell v. Hamilton, 177 Pa. St. 23.

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Rent is a tribute of a certain amount, regarded as issuing out of land, as part of its actual or possible profits, and rendered periodically by the owner of an estate therein, as a compensation for his use and enjoyment of the land, or as a charge on the land.

A rent service is a rent reserved upon a transfer of land creating a relation of tenure, the ordinary example at the present day being a lease for years, leaving a reversion in the lessor. A rent charge is created by a grant of a rent by the owner of land.

The right to rent, or to a proportional part thereof, usually passes to an assignee of the reversion, or of a part of the reversion, or it may be transferred without the reversion. The liability for rent is transferred by a transfer of the leasehold, but the lessor remains liable upon his covenant to pay rent. Rent does not accrue from day to day, and consequently, in case of change of title to the reversion between two rent days, the rent is not apportioned.

The rent, or liability therefor, may be extinguished or sus

pended by release, exclusion or eviction of the tenant from the premises, in some states by destruction of the buildings on the premises, or by the termination of the leasehold interest. It may be partially extinguished or suspended by a partial release, a partial eviction by title paramount, or a partial termination of the leasehold interest.

The landlord's remedies in case of nonpayment of rent are: (1) The action of debt; (2) an action on the covenant to pay rent; (3) an action for use and occupation; (4) re-entry for breach of a condition to pay rent; (5) distress, or its statutory substitutes; (6) the enforcement of the statutory landlord's lien, or the statutory remedy of attachment; (7) enforcement in equity, in some cases, of the application of the profits of the land in payment of the rent.

354. The nature of rent.

The word "rent" is derived from "render," and the name thus emphasizes the distinction between rent, which is actually rendered or paid by the tenant, and a profit a prendre, which is taken by the person entitled thereto, without the active intervention of the tenant.1 The term is used with some indefiniteness to describe both the right to the successive periodical payments or "renders," and also what may be periodically due or payable,—that is, it may refer to either the right to periodical compensation or to the compensation itself.

Rent is generally stated to be a "profit issuing out of the land," ," but this does not mean that the actual product of the soil must be delivered as rent. The use of the term "profit" refers rather, it would seem, to the underlying theory of rent, -that it, like other feudal services, is something owed by

12 Leake, 373; Co. Litt. 142a.

2 See 2 Minor, Institutes, 32. Thus it may be said that the owner of a "rent" is entitled to prompt payment of the "rent." Here the word "rent" is evidently used in two distinct senses.

81 Taylor, Landl. & Ten. § 369; 1 Woodfall, Landl. & Ten. 375; 2 Leake. 372.

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