CHAPTER V.

ATTORNMENTS.

As the statute of 4 Anne, c. 16, has dispensed with the necessity of an attornment in most cases, an act of this kind is not very often entered into. Where it usually occurs is where a party, who has been out of possession of the property, upon making his claim requires the tenants in possession either to attorn to him and acknowledge the subsisting relationship of landlord and tenant, or to render up the possession altogether; or it is sometimes done by a mortgagee, after forfeiture, either for the purpose of getting into the receipts of the rents and profits, or as a means of acquiring possession of the mortgaged premises, without resorting to his remedy by actual entry or ejectment. In a case of the latter kind, therefore, where a mortgagee does not desire to disturb the tenancy of the lessees, it is usually arranged that the latter shall attorn tenant to him, at the rent reserved by the lease, in order to establish a relationship of landlord and tenant between them.

As to lessees holding under leases granted prior or subsequent to the mortgage.]—If the tenant holds under a lease granted subsequently to the mortgage, then an attornment is absolutely necessary to establish the relationship of landlord and tenant between him and the mortgagee, and without which the latter will have no power to distrain for any rents accrued during the term (Rogers v. Humphreys, 4 Ad. & Ell. 313; Partingdon v. Woodcock, 6 ib. 690), although he may treat him as a trespasser, and eject him from the premises without any previous notice whatever: (Keech v. Hall, Doug. 21.) But where the demise to the tenant is prior to the mortgage, then a mortgagee, as incidental to his estate, upon giving notice to the tenant to pay him the rents,

may distrain upon him without any act of attornment whatever; the notice operating as an attornment at common law, and this relating back to the time of the grant, and taking in all rents due from the tenant at the time of such notice, and not actually paid over to the mortgagor: (Doe v. Boulter, 1 New. & Per. 650.)

The instrument of attornment is a very concise and simple one. By this the tenants in the occupation of the lands acknowledge their tenancy to the legal owner thereof. It usually states that the tenant, or several tenants, whose names are thereunto subscribed, being the tenant or several tenants in possession of the premises, do attorn and become tenant or tenants of the same premises to such legal owner, showing, at the same time, how the latter is entitled to the property; as by a certain indenture, &c. whereby the premises were conveyed to him in fee, or by descent from some deceased ancestor, or otherwise, as the case may be; the tenants then undertaking to pay the rent in respect of the premises whenever the same shall become due, in testimony whereof some small nominal pecuniary consideration (as 1s. for instance) is then expressed to be paid in confirmation of the agreement, and in part of the said rent payable from them to such owner of the lands in respect of the said estates of the tenements thereon: (see the form 1 Con. Prec., Part III., Section V., No. I., p. 635, 2nd edit.)

Where several tenants attorn at the same time.]-If, as frequently happens, several tenants attorn at the same time, the attornment of the whole of them may be contained in the same instrument. In this case, the best plan is to annex a schedule to the instrument, setting out the tenants' names, the names of the several tenements, with their local situation, the amount of yearly rent reserved, and the times at which such rents are payable: (see the form 1 Con. Prec., p. 636, 2nd edit.)

Attornments from mortgagor to mortgagee.]—In mortgage transactions it is sometimes arranged that the mortgagor shall attorn tenant to the mortgagee. This is done by a very concise form, by which the mortgagor attorns tenant to the mortgagee at a yearly rent, being the same amount as the reserved interest, to be paid either half-yearly or quarterly, on certain stated days in every year during the continuance of the mortgage security: (see the form 1 Con. Prec., Part III., Section V., No. III., p. 639, 2nd edit.)

Attornment clause improper in mortgages under Building Societies Act.]-It was formerly a very common practice in mortgages effected under the Benefit Building Societies Act to insert in the mortgage deed an attornment clause, by which the mortgagor attorned as tenant to the trustees of the society at a yearly rent, the mortgagor at the same time being permitted to hold and enjoy the premises, and to receive and take the rents and profits thereof until default; but in a case which came before the Court of Common Pleas a few years since (Walker v. Giles and Fort, 14 L. T. Rep. 41), it was held that such a clause was inconsistent with the nature of the assurance, from whence it seems improper to insert a clause of this kind in any mortgages of the above description.

Form of attornment from a tenant whom mortgagee has recovered against in ejectment.]—It sometimes happens that where a mortgagee has recovered in ejectment against a tenant, that it is arranged between them that the latter shall be permitted to continue in possession upon his attorning tenant to the mortgagee. The instrument for this purpose ought to recite the fact that the mortgagee has obtained judgment in the action brought against the tenant for the possession of the mortgaged premises, a particular description of which, corresponding with the parcels described in the judgment, should be here set out, and then stating how the mortgagee became entitled to such premises, as by a certain indenture, dated, &c. (setting out shortly the mortgage deed), the tenant then attorns tenant, and agrees to pay the reserved rents to the mortgagee, and to deliver up possession of the premises to him on the expiration of the term: (see the form 1 Con. Prec., Part III., Section V., No. IV., p. 640, 2nd edit.)

Attornments.]-A simple act of attornment to the persons legally entitled to the reversion requires no stamp, either as an agreement, or as an instrument not otherwise charged, an act of this kind never having been deemed of sufficient consequence to occupy a place in the schedules (Doe d. Wrighte v. Smyth, 8 Ad. & Ell. 255.) But if an attornment be made to persons having no right to the property, such an instrument will be inadmissible in evidence unless stamped as an agreement; and it has recently been held, that although a mere memorandum of attornment required no stamp, yet that if it proceeded to state the amount of rent, and the mode of payment, it became an agreement, and as such was

chargeable with stamp duty accordingly: (Frankis v. Frankis, 3 Per. & Dav. 565.)

Practical suggestions.]-The safest course will therefore be in all cases to stamp the instrument with an agreement stamp; for an instrument of this kind can never be effectual unless both the time and mode of payment, and the amount of rent to be so paid, be fully set out in it.

CHAPTER VI.

EASEMENTS.

Easements, how usually granted.]—Easements are usually granted and contained in the same conveyance with the property to which they appertain, wherein they are included either in express terms, or pass as appurtenant to the dominant tenement itself, which, whether it be conveyed in fee or for any less estate, will carry with it all the rights which the conveying party enjoyed by virtue of, and as appendant to, his estate, as against third parties: (11 Hen. 6, 22, pl. 19; Fentiman v. Smith, 4 East, 107.) But some particular kinds of easements, such as rights of way, or the use of a drain, or watercourse, are not unfrequently granted separately, and apart from the dominant tenement, and not unfrequently by parties claiming under a title perfectly distinct from that of the person through whom the grantor derives his title to the tenement itself upon which the privilege is to be conferred.

By what assurance the grant must be made.]-Whatever opinions may formerly have been entertained upon the subject, it is now clearly settled that the grant of an easement can only be made by an instrument under seal (Cocker v. Cowper, 1 Cr. Mees. & Ros. 418); for if made by parol, it will be a mere licence liable at any time to be revoked by the party who gave it, notwithstanding the licencee, upon the faith of such licence, may have expended heavy sums in the exercise of the privilege professed to be conferred; as where a commoner with the licence of the lord builds a cottage on the waste, which the latter afterwards revokes, as he lawfully may whenever he thinks proper (R. v. Inhabitants of Harrow-on-the-Hill, 4 M. & S. 565.) All, it seems, a party can confer by a parol licence,