CHAP. III. Rent service. Rent charge.(r) sum in gross to be paid by instalments; but if rent be reserved upon the demise of a ready furnished house, then it will be considered as reserved in respect of the realty, and may be recovered by distress; (n) but it may be, as in the case of a rentcharge, wholly independent of any conveyance or demise. At common law there are three descriptions of rents, viz. rent service, rent charge, and rent seck; and these again may be quit rents, rack rent or fee farm rent. (o) All these must properly be annual payments or renders in respect of lands or tenements corporeal, and cannot properly be reserved out of an advowson, a common, an office, a franchise, or out of other rent, or the like; and if so reserved, they are considered merely as annuities, operating only as a personal contract, and are not in legal contemplation rents. (p) Rent service is so called because it hath some corporeal service incident to it, as at the least, fealty, or his feodal oath of fidelity.(q) And this is frequently payable by a freeholder to the lord paramount, usually the lord of the manor, within which the freehold land is situate. A rent charge is where the owner of the rent hath no future interest or reversion expectant in the land, but an express clause or power of distress; and this may originate in two ways, as first, by a party conveying his whole estate in fee simple in land, but reserving to himself a certain annual rent payable thereout and charged thereon, with a clause of distress, in case the same shall be in arrear, and for which reason it is termed a rent charge; or secondly, by the owner in fee simple granting to another an annual rent in fee simple, or for life of the grantee, with a similar clause of distress, and therefore also called a rent charge. (s) The latter was the usual mode, before the recent act, of creating a qualification for killing game. (t) They were probably first adopted for the purpose of providing for younger children. (u) Where a rent charge is created by demising an estate for a long term of years, it is necessary for the grantee to enter in order to perfect his interest, or at least such an entry must be stated in pleading a title against strangers, unless it be alleged and shown that the grantee elected that the (n) 2 New Rep. 224. (0) 2 Bla. C. 41. (p) Gilb. Rents, 9; 1 Tho. Co. Lit. (q) Co. Lit. 142; 1 Tho. Co. Lit. 442. (s) 2 Bla. C. 42. (t) See form of Grant, Chit. G. L. 726; Cald. 230; and as to the consequence of a colourable grant, 2 B. & Ald. 367; 2 Jac. & W. 565, 391. (u) 1 Tho. Co. Lit. 448. deed should enure by way of bargain and sale. (x) A rent charge pur autre vie, if grantee die, living cestui que vie, goes to the grantee's executor, though not named in the grant, in the nature of special occupant. (y) On account of a rent charge issuing out of corporeal property, it is considered as so permanent and important a right, that if the owner thereof have a freehold interest in a rent charge, as for the term of his life, duly registered six calendar months before voting, he has a right to vote at an election; (2) and before the late act he was qualified to kill game. (a) When a deed reserves a clear rent charge, it is to be paid free from any deduction in respect of the land tax. (b) If land upon which a rent charge is charged be afterwards sold in parcels, and the grantee levy for the whole rent on one purchaser, the Court of Chancery will relieve him by a contribution from the rest of the purchasers, and restrain the grantee from levying in future upon him only. (c) A rent charge cannot be directly or indirectly, as by a warrant of attorney and judgment, charged on an ecclesiastical benefice. (d) In creating a rent charge, there should be an express power reserved to distrain upon growing crops, or upon common appurtenant, or in case of fraudulent removal; for otherwise, as the 11 Geo. 2, c. 19, does not extend to a rent charge, no such distress could be made. (e) If there be an express clause of distress, the grantee may distrain under it upon the grantor, or any person claiming under him since the grant was made, although a term may be vested in himself to secure the payment, (ƒ) but he could not distrain for the rent charge upon a person in possession under a lease prior to the grant, but must, in that case, distrain only for the arrear of rent under the lease when the reversion has been asssigned to him. (g) CHAP. IV. 1. RIGHTS TO REAL PROPERTY. Rent seck is a rent reserved by deed and payable in respect Rent seck. (h) of corporeal property, but without any clause of distress, and therefore termed siccus or barren rent, and before the 4 Geo. 2, c. 28, s. 5, no distress could have been made for an arrear of that rent; but that statute, after reciting that the remedy for recovering rents seck, rents of assize, and chief rents, (now called quit rents,) are tedious and difficult, gives the power of CHAP. IV. Quit rents. Fee farm rents. Rack rents. distress to the owner of such rents, provided they have been paid for three years, within twenty years before the first day of the session of parliament in which the act was passed, or which should be thereafter created. (i) These were formerly termed rents of assize or chief rents, but now quit rents, and are sometimes payable as well by freeholders as copyholders, and are so called because by paying such rent the owner of the land goes quit of all other services. (k) Mere length of time, short of the statute of limitations, and unaccompanied by any circumstances, is not of itself a sufficient ground to presume a release or extinguishment of a quit rent, the punctual payment of which small render is rarely exacted with vigilance. (1) A fee farm rent has been defined to be a rent charge issuing out of an estate in fee, and perpetually payable in fee, and of at least one-fourth of the value of the lands at the time of its reservation; (m) for a grant of lands reserving so considerable a rent is, indeed, only letting lands to farm in fee simple instead of the usual methods for life or years. (n) But Mr Hargrave and others have expressed an opinion that this quantum of the rent is not essential to create a fee farm rent; (0) and others have considered that a fee farm rent is not necessarily a rent charge, but may also be a rent seck; (p) and if the latter, and if granted before the 4 Geo. 2, c. 28, in order to support a distress for the recovery of it, it would be necessary to prove that the rent had been paid for three years, within twenty years before the passing of that act.(q) It should seem that since the statute quia emptores, 18 Edw. 1, a fee farm rent could not be created, though sometimes attempted, and when accompanied with an express power of distress it would at least operate as a rent charge. (r) The term rack rent merely refers to amount and not to any particular description of rent, and imports a rent of the full annual value of the tenement or near it. (s) The 11 Geo. 2, c. 19, s. 16, and 57 Geo. 3, c. 52, use the term, and enact, that if any tenant, holding any lands, tenements or hereditaments at a rack rent, or where the rent reserved shall be three-fourths of the yearly value of the demised premises, at the least, shall be in arrear half a year's rent, and shall desert the premises or I. RIGHTS TO REAL PROPERTY. leave the same uncultivated or unoccupied, so as no sufficient CHAP. IV. distress can be had, then justices may give him possession by summary proceedings. The term rack rent, as thus used in these acts, does not mean the rent reserved, but such a rent as the landlord and tenant might fairly agree upon, supposing the premises were vacant and unlet.(t) rents. By various inclosure and other acts, rents, usually termed Corn and other corn rents, are made payable in lieu of tithes to the parson, subject sometimes to the poor rate, and sometimes not, according to the terms of the particular statute and are recoverable as directed by the same. (u) Real Property may be holden. By the statute 12 Car. 2, c. 14, many of the ancient military II. The differand other tenures were abolished, (y) and only free socage, ent TENURES by which Corporeal (now termed freehold,) copyhold, and privileged villenage, (such and Incoporeal as ancient demesne and customary freeholds,) and spiritual tenures (such as frankalmoigne) were reserved. The first in- () cludes the ordinary tenures prevailing at this day, as principally and most generally freehold, (z) including also tenures in free burgage, (a) as borough English, (b) and certain customary burgage tenures and gavelkind; (c) the second, (copyhold tenure,) varying by custom, in some respects, in each particular manor; (d) the third tenure, in privileged villenage, including ancient demesne, (e) and customary freeholds, (f) which are not (t) 2 B. & Ald. 652. (u) 6 B. & Cres. 274; 3 B. & Cres. 863; 4 B. & Cres. 467; 6 Dowl. & R. 467. (1) See in general Gilbert on Tenures, and 3 Tho. Co. Lit. Index, Tenure. (y) The tenure in petit serjeantry is not wholly abolished. The tenure by which the lands and property granted to the Duke of Marlborough and the Duke of Wellington for their great military services are holden at this day, is of this kind of tenure, each rendering a small flag or ensign annually, which is deposited in Windsor Castle. This is, however, but socage tenure, in effect, because it is a yearly render of a thing certain, in the same manner as a rent; nor is the tenant bound to perform any other service. See Litt. s. 160; see Co. L. 108, b. note 1. The Reform Act, 2 & 3 W. 4, c. 45, expressly provides for rights to vote in elections to persons holding freehold, copyhold, ancient demesne, or by any other tenure whatever. (3) See tenure in freehold in corporeal and in incorporeal property, and in a rec- (a) See tenure by free burgage plead- notes. (b) See tenure in borough English pleaded 8 Went. 201; borough English lands shall be brought into hotch-potch under statute of distributions, 2 Stra. 935. (c) See in general 2 Bla. C. 78 to 90, in notes; and see this tenure pleaded, 1 Burr. 326. (d) See in general 2 Bla. C. 90 to 99; as to the mode of describing copyhold tenure, &c. 1 Saund. 348; Heath, Maxims, 145; Com. Dig. Pleader, E.; 2 Chit. Pl. 565, b. (e) 2 Bla. C. 99. (f) Scriven on Copyholds, 656; see customary freehold tenure pleaded, 2 Chit. Pl. 5 ed. 567; 9 Went. 124; and as to the statement of this estate, and the CHAP. IV. Freehold. unusual in the northern counties of England. Corporeal real property, as well as most descriptions of incorporeal property, are in general capable of being holden by either of these descriptions of tenure. (g) As respects tenure, the now repealed laws relating to the qualification to kill game, (h) and the recent reform act, (i) make no distinction whether the tenure be freehold, copyhold, ancient demesne, or any other tenure, and the owner and occupier of each, when of a certain yearly value, are entitled to vote, (k) though formerly copyholders could not vote at an election. (1) We have seen, that there may be different tenures as to different parts of the same land, or rather as to the different interests, that might, before the time of legal memory, have originally been carved out as to the same land. Thus one may hold to him and his heirs the prima tonsura of land as a copyholder, and another may hold to him and his heirs the soil, and every other beneficial enjoyment of it, as a freeholder. (m) Although freehold is the most independent description of tenure, yet in law and substantially the land is considered to be holden of a superior lord, to whom sometimes rent, or suit and service at his court, is due, and who may require the owner to take the oath of fealty, and who, upon the death of the owner intestate without heir, is entitled to the estate by escheat. (») This rent, sometimes payable by freeholders, is called chief rent, redditus capitales, or quit rent quietus redditus, because thereby the tenant goes quit and free of all other services. (o) In all other respects the land and every thing upon it belongs absolutely to the owner, who may, as well at law as in equity, except in the case of a trustee, (p) alter the same, and cut and sell timber, and commit what would in others, holding by inferior tenure or title, be waste, with impunity, and even burn his own house, unless it be insured or likely to occasion damage to another person; (g) and as his tenure is superior in its advantages to any other, the owner should take (m) 7 East, 200; 5 Smith, 261, S.C. (n) 2 Bla. C. 86, 87, 97. A legal manor ceases to exist as such for most purposes, if there be not two freeholders continuing bound to attend as suitors at the Court Baron, Bro. Ab. Cause a Remover, pl. 35; 2 T. R. 447; 10 East, 259; 2 Bla. C. 90, ante, 166, note (q). (0) 2 Bla. C. 42, 43. (p) 1 Mad. Ch. R. 120; For. 6; 2 Ch. Cases, 32; 3 Woode's Lect. 399, post. (q) 7 & 8 Geo. 4, c. 30, s. 2; Rex v. March, R. & M. C. C. 182. |