ÆäÀÌÁö À̹ÌÁö
PDF
ePub

the land itself, and consequently is necessarily payable out of the profits of the land. Rent is, in fact, usually reserved or made payable in money, but the tribute to be rendered may, by the terms of the reservation, take almost any form, as, for instance, the delivery of a horse, or of a certain amount of grain or cotton, or the payment of taxes, the furnishing of board or support, or the performance of manual services on or off the land.10

11

9

Rent cannot, it is said, consist of part of the annual products of the soil (fructus naturales), since these are part of the land itself, which can be the subject of an exception only, and not of a reservation. So, while it is sometimes stated that a portion of the minerals in the land may be reserved as rent,12 the proper view of those cases in which the grantor or lessor reserves to himself a share of the ore which may be removed from the land granted or leased is that an exception from the grant is thereby created, although it be in form a stipulation for rent.18

4 See ante, § 7.

• Compare 2 Pollock & Maitland, Hist. Eng. Law, 129.

• Co. Litt. 142a.

7 Co. Litt. 142a; Townsend v. Isenberger, 45 Iowa, 670; Boyd v. McCombs, 4 Pa. St. 146; McDougal v. Sanders, 75 Ga. 140. Frequently, in this country, under contracts for the cultivation of land on shares, rent consists of a portion of the crop raised. See ante, § 230.

8 Roberts v. Sims, 64 Miss. 597.

• Baker v. Adams, 5 Cush. (Mass.) 99; Shouse v. Krusor, 24 Mo. App. 279.

10 Co. Litt. 96a, 96b; Doe d. Edney v. Benham, 7 Q. B. 976; Van Renssalaer v. Jewett, 2 N. Y. 141.

11 Co. Litt. 142a; Sheppard's Touchstone (Preston's Ed.) 80; Moulton v. Robinson, 27 N. H. 550. But see ante, § 230.

12 Buckley v. Kenyon, 10 East, 139; Rex v. Pomfret, 5 Maule & S. 139; Reg. v. Westbrook, 10 Q. B. 178.

18 See Gowan v. Christie, L. R. 2 H. L. Sc. 273, 284, per Lord

14

The amount of the rent must be certain, or capable of reduction to a certainty, but it is sufficient if the ascertainment of the amount can be made before the time for payment of the rent.15

8 355. Things from which rent may issue.

A rent can be reserved only out of lands or things constituting in law a part thereof, and cannot be reserved out of incorporeal things; the reason, as given in the books, being that it must be reserved out of something whereunto the lessor may have recourse in order to distrain.16 On this principle, it is held that, where land is leased, together with incorporeal rights as incident thereto, the rent is to be regarded as issuing entirely out of the land, for the purpose of enforcing the remedy for nonpayment.17 Since rent cannot issue out of chattels, in the case of a lease of land together with chattels, the whole rent is considered as issuing from the land alone for most purposes,18 and there may be a distress on the

Cairns; Coltness Iron Co. v. Black, 6 App. Cas. 315, 335, per Lord Blackburn; Fairchild v. Fairchild (Pa.) 9 Atl. 255; Duff's Appeal, 21 Wkly. Notes Cas. (Pa.) 491. See ante, § 222.

14 Gilbert, Rents, 9; 1 Woodfall, Landl. & Ten. 375.

15 Co. Litt. 96a; Selby v. Greaves, L. R. 3 C. P. 594; Walsh v. Lonsdale, 21 Ch. Div. 9; McFarlane v. Williams, 107 Ill. 33; Dutcher v. Culver, 24 Minn. 584.

16 Co. Litt. 47a, 142a; Gilbert, Rents, 20; Raby v. Reeves, 112 N. C. 688.

17 Buszard v. Capel, 8 Barn. & C. 141, 2 Gray's Cas. 688. So, in Winslow v. Henry, 5 Hill (N. Y.) 481, where there was a demise of a room with a right to use a passage communicating therewith, it was held that the passage was not a part of the premises demised, so as to justify a distress on goods found therein.

18 Farewell v. Dickenson, 6 Barn. & C. 251, 2 Gray's Cas. 688.

In Mickle v. Miles, 31 Pa. St. 20, and Vetter's Appeal, 99 Pa. St. 52, it was said that rent may issue, not only from lands and tenements, but also from the personal property necessary for their enjoyment, but by this the court evidently meant merely that rent

land for the whole rent,' 19 and an eviction from the land will entirely suspend the liability for rent, without reference to the continuance of the right to use the chattels. 20 Whether the loss of the use and enjoyment of chattels thus leased with land will relieve the tenant from liability for a proportional part of the rent is doubtful.21

On the same principle, that the rent issues entirely out of the land, it has been decided that the executor of the lessor, though entitled to the chattels, has no right to a portion of rent reserved on a lease of land and chattels.22 In another state, however, it has been held that the grantee of the reversion in the land only is not entitled to the whole rent reserved, if the title to the chattels remains in the lessor;2 .28 and it has been suggested that, if the chattels and the land pass into the hands of different persons, the rent should be apportioned between them.24

356. Classes of rents.

The classification of rents at common law was based primarily upon the distinction between a rent which was reserved upon the conveyance or lease of land, as a compensa

does not cease to be rent because reserved upon a lease of land which also includes chattels.

19 Newman v. Anderton, 2 Bos. & P. (N. R.) 224, 2 Gray's Cas. 681; Mickle v. Miles, 31 Pa. St. 20.

30 Gilbert, Rents, 175; 1 Woodfall, Landl. & Ten. 402; Ernott v. Cole, Cro. Eliz. 255; Cadogan v. Kennett, Cowp. 432.

" In Newton v. Wilson, 3 Hen. & M. (Va.) 470, it was decided that the tenant should be relieved in such case from a proportionate part of the rent. To the same effect, Whitaker v. Hawley, 25 Kan. 674, 37 Am. Rep. 277. Gilbert, Rents, 187, favors a contrary view, as do, apparently, by implication, the authorities cited in the last preceding note.

22 Armstrong v. Cummings, 58 How. Pr. (N. Y.) 332; Fay v. Halloran, 35 Barb. (N. Y.) 295.

28 Buffum v. Deane, 4 Gray (Mass.) 385. 24 Salmon v. Matthews, 8 Mees. & W. 827.

tion to the grantor or lessor, and a rent which was granted by the owner of land to another person, without any transfer of the land, being merely a right to a periodical payment secured on the land.

In the former case, before the Statute of Quia Emptores, since the conveyance of the land created a relation of tenure, even in the case of the conveyance of an estate in fee simple, the payment of the rent reserved was regarded as one of the services incident to that relation.25 Accordingly, a rent reserved upon the making of a feoffment, whereby the relation of tenure was created, was known as a "rent service."28

Upon a failure to perform this feudal service of paying rent, the lord was, as in the case of default in any other of the feudal services, entitled to enforce its performance by the seizure of chattels upon the land, this being known as the remedy of "distress."27 This right of distress was a distinctive feature of the particular class of rents known as "rents service."

The right of distress was an incident of the right of lordship, the "seignory," or, when the tenure was for an estate less than a fee simple, of the reversion remaining in the lord, and consequently, if the lord granted the seignory or reversion while retaining the rent, or granted the rent while re taining the seignory or reversion, the rent could no longer be enforced by distress, and was accordingly thereafter termed a "rent seck" or "dry rent.”28

In the case of a rent created by the grant of a rent by the owner of land, of which he retained the ownership, no relation of tenure was created, and consequently there was no remedy by way of distress for the enforcement of the obliga

25 See ante, § 7.

28 Litt. § 122; Gilbert, Rents, 9.

27 Litt. §§ 213, 216. See post, § 364.

28 Litt. §§ 218, 225-228; Den d. Farley v. Craig, 15-N. J. Law, 192

tion. A rent so created was accordingly another form of "rent seck." A right of distress might, however, be expressly given in the grant, in which case the rent was known as a "rent charge."29 Rents charge, thus created by a grant of a rent by the owner of land, he retaining the entire interest in the land, are quite common in England, they being some times granted by the purchaser of land as part of the consideration therefor, and also being utilized as a mode of pro-. viding for younger sons and others in family settlements. In this country, however, they are very infrequent. They are in effect merely annuities secured on land, and in some cases equity will enforce their payment by a sale of the land, as in the case of a mortgage or other lien.

After the Statute Quia Emptores, a conveyance of land in fee simple no longer had the effect of creating a relation of tenure between the feoffor and feoffee, but the feoffee merely became substituted in place of the feoffor. Consequently, a reservation of rent on such a conveyance thereafter made could not be regarded as a rent service, and was a rent seck, without the right of distress, unless this right was expressly given, so as to render it a rent charge.30 Since, howev er, this statute did not apply in the case of a conveyance of an estate less than a fee, a rent service is, even at the present day, created by the reservation of rent upon the conveyance or lease by a tenant in fee of a less estate, either an estate tail, an estate for life, or one for years; and likewise when a tenant of an estate less than a fee conveys or leases for a

29 Litt. 88 218, 219; Co. Litt. 150b; 2 Pollock & Maitland, Hist. Eng. Law, 129.

30 Litt. 88 215-217; Co. Litt. 143b, Hargrave's note; Bradbury v. Wright, 2 Doug. 624; Van Rensselaer v. Chadwick, 22 N. Y. 32.

In Pennsylvania, a rent created by a reservation upon the conveyance of land in fee simple is a rent service, but this is owing to the fact that the statute Quia Emptores is not in force there. gersoll v. Sergeant, 1 Whart. (Pa.) 336, Finch's Cas. 86.

In

« ÀÌÀü°è¼Ó »