to whom they primarily belonged, and in whom the ultimate property continued vested: hence of the determination of his or her interest all just allowances and deductions in respect of charges on such rents, annuities, &c. being made. The statute then gives the same remedies at law and in equity for the apportioned part as for the entire rent, &c. The 3rd section provides, That the act shall not invalidate any express provision against apportionment.] Co. Litt. 201. 202 a. note. Co. Litt. 302. Anders. 253. 1 Saund. 287. Prec. Ch. 555. Rent is due and payable upon the land from whence it issues if no particular place be mentioned in the reservation, and it is strictly demandable and payable before the time of sunset on the day whereon it is reserved, though perhaps not absolutely due till midnight; and therefore if the lessor die before sunset on the day whereon rent is demandable, the rent unpaid goes to his heir, but if after sunset and before mid- 1 P. Wms. 178. night, it is said that it shall go to his executor and not to his heir. Salk. 578. The tenements out of which a rent is to issue must be of Co. Litt. 142. a corporeal nature, in order that the person so entitled to the (".) rent may have a remedy by distress. The rent must also be reserved to one of the grantors, and not to a stranger to the deed. To rents in gross, the remedy by distress originally appertained by express reservation only, and hence arose the distinctive appellations of charge and seck to rents of this description, as they were accompanied or not with such express remedy; but now, by the statute 4 Geo. 2. c. 28., all rents formerly rents-seck are alike attended by that remedy. [By the 42nd section of the stat. 3 & 4 Will. 4. c. 27., no arrears of rent are recoverable for more than six years.] [A rent must either be reserved on a reversion, or it must be a rent-seck, rent-service, or a rent-charge; but as there cannot be a rent-seck, rent-service, or rent-charge issuing out of a term, if a termor assign his whole interest in his term, rendering rent, he cannot distrain if the rent be in arrear, as he has no reversion: his only remedy, therefore, is upon any Rodham v. Gilb. Rents, 17. it follows, that, if lands or tenements were not derived from another, as anciently when lands were held in allodio, or if no other person has such ultimate property in him, there can be no rent. If a person, consequently, grant over his whole property in certain premises to another, the other (or grantee) paying to such person and his heirs a certain sum annually for ever, such annual sum will not be properly a rent, as the grantor has no ultimate property or reversion in him. Such annual payment is, indeed, commonly denominated a rent-charge or rent-seck; but it is not strictly and in reality a rent; and the law, accordingly respected it differently; as it gave the grantor no power of distress without a special stipulation.* covenant or contract existing between him and the assignee. * This method of conferring property was probably first devised as a convenient means of providing for younger children, without interrupting the descent of the feud upon the eldest son; and also of carving out interests in land without the necessity of obtaining the consent of the lord, as was necessary in the case of a transfer of the land itself; for by this means no stranger was introduced into the feud, nor any relative obligation created between him and the lord. But as interests of this kind were an anomaly in the feudal system, they were viewed unfavourably, and distress was not allowed, Again, if a person grant an annual sum to be issuing out of his lands to another and his heirs for ever, without parting with any property in the lands themselves, it will be no rent, as it is Gilb. unless it was expressly reserved: if, however, such a rent were granted for equality of exchange or partition, or in lieu of dower, it was not regarded in this obnoxious light, but was termed a rent-charge of common right, to which the remedy by distress was incident without any express provision. Rents, 17. And it has lately been decided, that a distress may be taken for arrears of a rent-charge created by will, although the testator does not in terms give a power to distrain-that power being a consequence drawn by law from the rent-charge. Rodham v. Berry, K. B., April, 1826. [In the present day rent-charges are frequently created for securing pin-money and jointures to married women, a present provision for an eldest son, for procuring the qualifications of a freeholder, and for securing life annuities as a mode of raising money:] between the last description and a mortgage there is this difference ;- —a mortgage constitutes a debt; a life annuity is an absolute purchase ;-the consideration of the one is to be returned; the consideration of the other is gone for ever: and although a life annuity may be made repurchaseable, the money paid for redemption is not paid in discharge of a lien on the estate, but as the consideration for a new purchase. The principle to be collected from the cases on this head is, that since the proviso for repurchase is solely for the advantage of the grantor, by allowing him to extinguish the annuity at pleasure, without enabling the grantee to compel redemption, the grant is to be considered as strictly legal, and in no way subject to the rules which govern equities of redemption. See Lawley v. Hooper, 3 Atk. 278. Murray v. Harding, 2 W. Black. 859. Irnham v. Child, 1 Bro. Ch. Ca. 92. Corn. U. 42, 1 Pow. Mortg. 139 n. 5th ed. no return, no compensation, since the grantee has no lands in consequence of such grant for which to render or return a compensation.* As, however, the sum stipulated to be paid is an annual, or at least a periodical sum, and to be issuing out of lands, it was, by reason of its analogy to the proper rent, denominated a rentcharge, or a rent-seck, according as the power of distress was or was not given. Again, as a proper rent is a compensation or return for the enjoyment of a particular estate, it follows that when the particular estate determines the rent must also cease. As the returns of the feud were conditions, on the breach of which the feud reverted to the lord, so the nonpayment of rent occasioned a forfeiture of the lands out of which it was to issue. The rigour of the feudal law with respect to * If a rent-charge be reserved to the grantor on a conveyance in fee, the grantor is said to hold the rent by re-grant from the grantee. If so, the rent should be subject to the charges and incumbrances of the grantee; a point which has not yet received its due share of consideration.-As to the apportionment of rents, see the late case of Smith, ex parte, 1 Swanst. 337. and the learned reporter's note there, and the statute 4 & 5 Will. 4. c. 22., suprà, p. 274 note. forfeiture, in the cases of nonpayment of rent, was soon, however, abated. It was thought unreasonably severe to insist on an absolute forfeiture of the premises on nonpayment of rent at the very day on which it was reserved; and the law of distresses was, therefore, adopted from the civil code. But, as the distress was merely a substitute for the feudal forfeiture, it follows that it could only take place where that was allowed. If a person had no right of reverter, therefore, as in the cases where the lands out of which the annual payment was to issue had not moved from him, or where he had parted with his ultimate property in the lands which had originally moved from him, there could be no forfeiture to him of the lands or tenements; and consequently he could not be entitled to a distress, which was merely substituted for the former remedy. If the particular estate for which the rent was to be rendered had expired, there could possibly be no forfeiture; as the estate which only could have been the subject of forfeiture had ceased to exist; and, consequently, there could be no distress. In the two former cases, indeed, a power of distress might have been expressly created, but then it was, as the terms import, a private stipulation between the particular parties, and not a remedy given by the law. The law, however, has been altered in this respect, by statute 4 Geo. 2. |