period less than his own estate, so as to leave a reversion in him. Consequently, the rent reserved on the ordinary lease for years is a rent service, and is attended with the right of distress in jurisdictions where this has not been abolished.31 Rent reserved on a tenancy at will is not properly a rent service, because there is no relation of tenure, but distress is allowed, at common law, as in the case of a rent service.32 § 357. Rents as real or personal property. A rent charge granted by the owner of land is real or personal property, according as the grantee is given a freehold estate therein, or an estate less than freehold.33 A rent reserved upon the grant of a fee-simple estate in land is real property passing to the heir or devisee.34 A rent service incident to a reversion partakes of the nature of the reversion. Accordingly, it is more usually real property passing to the heir, as being reserved by a tenant in fee simple making a lease for years, though it is personalty belonging to the executor or administrator, if reserved on a sublease by a tenant for years.35 If, however, a rent reserved on a lease for years by a tenant in fee simple becomes 81 Litt. 88 214, 215; Ehrman v. Mayer, 57 Md. 621; Ingersoll v. Sergeant, 1 Whart. (Pa.) 337, Finch's Cas. 86; Den d. Farley v. Craig, 15 N. J. Law, 192. 82 Litt. § 72; Co. Litt. 57b. 88 Knolle's Case, 1 Dyer, 5b; Butt's Case, 7 Coke, 23a; 1 Woerner, Administration, § 297. 84 Cobb v. Biddle, 14 Pa. St. 444; White's Estate, 167 Pa. St. 206. As to the particular mode of descent of a rent charge created by the reservation of a rent on a grant in fee, see Co. Litt. 12b; 3 Preston, Abstracts, 54; Van Rensselaer v. Hays, 19 N. Y. 68, Finch's Cas. 81. 85 1 Woerner, Administration, § 300; Sacheverell v. Froggatt, 2 Saund. 367a, notes; Stinson v. Stinson, 38 Me. 593; Dixon v. Nic colls, 39 Ill. 372, 89 Am. Dec. 312; Rubottom v. Morrow, 24 Ind. 202, 87 Am. Dec. 324; Woodburn's Estate, 138 Pa. St. 606, 21 Am. St. Rep. 932. 87 8 359 separated from the reversion,86 it is equivalent to an estate for years merely in a rent charge, and passes to the personal representative of the owner, and not to the heir or devisee." Rent which has become due is personal property, and consequently, upon the death of the person entitled thereto, though still unpaid, it goes to his personal representative, and not to his heir or devisee.38 358. Place and time of payment. Rent is payable, in the absence of a stipulation otherwise, upon the demised premises.39 40 Rent payable in money on a particular day is, strictly speaking, not due till midnight of that day. In order, however, for the landlord to enforce a forfeiture for nonpayment, or for the tenant to avoid such forfeiture, the latter must demand the rent, or the latter must pay it, before sunset of the day of payment."1 359. Mode of reservation. As a rent may be reserved on a conveyance in fee, so it may be reserved upon the transfer of the whole interest of a tenant for life or for years, a reversion in the transferrer being unnecessary. 42 See post, § 360. " Knolle's Case, Dyer, 5b; Williams, Executors (9th Ed.) 727. 381 Woerner, Administration, § 300; Mills v. Merryman, 49 Me. 65; Haslage v. Krugh, 25 Pa. St. 97; Bealey v. Blake's Adm'r, 70 Mo. App. 229; Ball v. First Nat. Bank of Covington, 80 Ky. 501. 39 Co. Litt. 201b, 202a; Boroughes' Case, 4 Coke, 72a; Walter v. Dewey, 16 Johns. (N. Y.) 222; Fordyce v. Hathorn, 57 Mo. 120. As to the necessity of a demand on the premises in order to enforce a condition of re-entry for nonpayment of rent, see ante, § 71. 40 Cutting v. Derby, 2 W. Bl. 1077; Smith v. Shepard, 15 Pick. (Mass.) 147, 25 Am. Dec. 432; Hammond v. Thompson, 168 Mass. 631; Sherlock v. Thayer, 4 Mich. 355, 66 Am. Dec. 539. 41 See ante, § 71. 2 Newcomb v. Harvey, Carth. 161, 2 Gray's Cas. 673; Williams v. "Rent," properly so called, cannot, upon the grant or de mise of land, be reserved to a person other than the grantor or lessor of the land.43 $360. Transfer of rights and liabilities. Upon the conveyance of a reversion to which a rent is incident, the rent also passes unless there is a stipulation to the contrary; but the reversion may be conveyed without the rent, or the rent may be assigned without the reversion, the rent and the reversion being thereby separated. 45 The liability for rent reserved on a lease for years passes to an assignee of the leasehold by reason of the "privity of estate" existing between him and the owner of the reversion, and an assignee of the reversion has also, on the same theory, a right to recover the rent. This question of the rights and liabilities of the transferees by reason of their privity of estate will be more conveniently considered in connection with the subject of the common-law action of "debt" as a remedy for nonpayment of rent." Covenants to pay rent. A lease usually contains a covenant on the part of the lessee to pay rent. Both the benefit and the burden of a Hayward, 1 El. & El. 1040, 2 Gray's Cas. 700; McMurphy v. Minot, 4 N. H. 251, 2 Gray's Cas. 743. 48 Litt. § 346; Co. Litt. 47a, 143b, 213b, Butler's note; Oates v. Frith, Hob. 130a; Ege v. Ege, 5 Watts (Pa.) 138; Ryerson v. Quackenbush, 26 N. J. Law, 236. 44 Walker's Case, 3 Coke, 22, 2 Gray's Cas. 661; Butt v. Ellett, 19 Wall. (U. S.) 544; Dixon v. Niccolls, 39 Ill. 372, 89 Am. Dec. 312; Steed v. Hinson, 76 Ala. 298. And see cases cited ante, § 47, note 247. 45 Co. Litt. 143a, 151b; Moffatt v. Smith, 4 N. Y. 126, Finch's Cas. 749; Beal v. Boston Car Spring Co., 125 Mass. 157, 28 Am. Rep. 216, 2 Gray's Cas. 787; Crosby v. Loop, 13 Ill. 625; Damren v. Amer ican Light & Power Co., 91 Me. 334. 46 See post, § 364. covenant to pay rent, upon a demise leaving a reversion in the lessor, run with the land, and consequently an action thereon may be brought by the assignee of the reversion18 and against an assignee of the lessee.19 It has been decided in this country that, even upon the assignment of a rent reserved on a lease for years, apart from the reversion, the benefit of the lessee's covenant runs with the rent, so as to authorize suit by the assignee there on.50 In case of the assignment of a part only of the reversion by the lessor, he and his assignee are each entitled to recover, on the lessee's covenant to pay rent, a proportional part of the rent.51 The liability on the covenant to pay rent has likewise been regarded as apportionable to such an extent as to render an assignee of a part of the leasehold subject to a proportional part thereof, and no more.52 But the liability of the orig inal lessee upon his covenant to pay rent, being of a purely contractual nature, is not affected by his transfer of the lease 47 See ante, § 49, note 260. 48 Thursby v. Plant, 1 Saund. 240, 1 Lev. 259, 2 Gray's Cas. 671; Midgleys v. Lovelace, 12 Mod. 45; Outtoun v. Dulin, 72 Md. 536; 2 Taylor, Landl. & Ten. § 661. 49 Palmer v. Edwards, 1 Doug. 187, note; Steward v. Wolveridge, 9 Bing. 60; Donelson v. Polk, 64 Md. 504; Lee v. Payne, 4 Mich. 106, 119; Carley v. Lewis, 24 Ind. 23; Pingry v. Watkins, 17 Vt. 379; Bowdre v. Hampton, 6 Rich. Law (S. C.) 208; Salisbury v. Shirley, 66 Cal. 225. 50 Willard v. Tillman, 2 Hill (N. Y.) 274; Demarest v. Willard, 8 Cow. (N. Y.) 206; Patten v. Deshon, 1 Gray (Mass.) 325. Contra, Allen v. Wooley, 1 Blackf. (Ind.) 148. See 1 Taylor, Landl. & Ten. § 261, note ad finem. 51 City of Swansea v. Thomas, 10 Q. B. Div. 48; Linton v. Hart, 25 Pa. St. 193, 64 Am. Dec. 691; Worthington v. Cooke, 56 Md. 51; Crosby v. Loop, 13 Ill. 625; 2 Platt, Leases, 271. 52 Babcock v. Scoville, 56 Ill. 461; Harris v. Frank, 52 Miss. 155; St. Louis Public Schools v. Boatmen's Ins, & Trust Co., 5 Mo. App. 91 (semble). hold interest, although his transferee also becomes liable thereon.58 Covenant to pay rent in fee. The benefit of a covenant to pay rent reserved or granted in fee will, according to the English cases, it seems, not run with the rent, so as to be available to subsequent owners thereof, the theory being that a covenant will never rùn with an incorporeal thing.54 In this country, on the other hand, it has been usually held that the benefit of the covenant will run with the rent,55 this being in accord with the view held here that a covenant will run with an incorporeal thing." 56 In this country, likewise, the burden of a covenant to pay a rent in fee is regarded as passing with the land, so as to render the grantee of the land personally liable thereon." 58 Thursby v. Plant, 1 Saund. 237, 1 Lev. 259, 2 Gray's Cas. 671; Mills v. Auriol, 1 H. Bl. 433; Randall v. Rigby, 4 Mees. & W. 134; Grommes v. St. Paul Trust Co., 147 Ill. 634, 37 Am. St. Rep. 248; Creveling v. De Hart, 54 N. J. Law, 338; Taylor v. De Bus, 31 Ohio St. 468; Dewey v. Dupuy, 2 Watts & S. (Pa.) 553. But his liability in an action of debt for the rent no longer continues. See post, } 364. 54 Milnes v. Branch, 5 Maule & S. 411, 2 Gray's Cas. 684; Randall v. Rigby, 4 Mees. & W. 130, 135. 55 Scott v. Lunt's Adm'r, 7 Pet. (U. S.) 596; Streaper v. Fisher 1 Rawle (Pa.) 155, 18 Am. Dec. 604; Trustees of St. Mary's Church v. Miles, 1 Whart. (Pa.) 229; Cook v. Brightly, 46 Pa. St. 439; Van Rensselaer v. Read, 26 N. Y. 558, distinguishing Devisees of Van Rensselaer v. Executors of Platner, 2 Johns. Cas. (N. Y.) 24. But see Irish v. Johnston, 11 Pa. St. 488, and the discussion of the question in notes to Spencer's Case, 1 Smith, Lead. Cas. Eq. 193. 56 See ante, § 345. 57 Streaper v. Fisher, 1 Rawle (Pa.) 155; Herbaugh v. Zentmyer, 2 Rawle (Pa.) 159; Hannen v. Ewalt, 18 Pa. St. 9; Van Rensselaer v. Read, 26 N. Y. 558; Van Rensselaer v. Dennison, 35 N. Y. 393. See 1 Taylor, Landl. & Ten. § 261, note. On the same principle, the burden of a covenant to pay a rent reserved upon the transfer of a life interest in land will bind a subsequent transferee of such interest. McMurphy v. Minot, 4 N. H. 251, 2 Gray's Cas 743. |