wise (not being rent-service incident to a reversion), may, when in arrear twenty-one days, be recovered by distress; and, when in arrear for forty days, may be recovered either by entry upon and perception of the profits of the land, or by means of a demise of the land to a trustee for a term of years, upon trust (by mortgage, sale, or otherwise) to raise the arrears, together with the expenses. But these powers are applicable only where the document creating the rent comes into operation after the 31st December, 1881, and they may be excluded by agreement of the parties, expressed in the instrument creating the charge. This same statute also, by sect. 45, makes an important alteration in the law, by providing that a quit-rent, chief-rent, perpetual rent-charge, or other perpetual annual sum issuing out of land (not being tithe-rent-charge, or rent reserved under a lease or upon a sale or building grant), whensoever created, may be redeemed at the option of the owner (or partowner) of the land, upon payment or tender to the owner of the rent (being an absolute owner or an owner otherwise competent to give a receipt therefor) of the amount certified, as the price of redemption, by a certificate of the Board of Agriculture, to be obtained by the landowner desirous of redeeming the rent. The latter is to give the owner of the rent one calendar month's notice of his intention to pay or tender such amount for the redemption of the rent; and, on proof of such payment or tender, so made after such notice as aforesaid, the Board grants its certificate of redemption, and the land is thereupon and thereby absolutely freed and discharged of the rent. [Rent is due and payable upon the land from which it issues; that is, if no particular place be mentioned in the reservation (2). But, in the case of the king, the payment may be either to the Crown officers at the Exchequer, or to a receiver in the country (a). And, (z) Co. Litt. 201 b. (a) Boroughe's Case, (1596) 4 Rep. 7 [strictly, rent is demandable and payable before the time of sunset of the day whereon it is reserved (b); though some have said that it is not absolutely due till midnight (c).] By the common law, if the estate or interest of the person entitled to the rent came to an end in the interval between one of the days of payment and another (as where it determined by death, supposing the lessor to have been tenant for life), the periodical sum then accruing was entirely lost to him and his representatives (d); and, supposing the rent itself not to determine, but to continue payable to some person in remainder or reversion, the whole sum accruing in respect of such interval would have belonged to that person, though the greater portion of such period might have elapsed in the time of his predecessor. But, as we have said in a former chapter (e), it has now been provided by the Apportionment Act, 1870, which repeals but re-enacts with amendments certain prior Acts, that, after the passing of that statute, all rents and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise), shall be considered as accruing from day to day, and shall be apportionable in respect of time accordingly. The apportioned part of the same is, however, only payable (in the case of a continuing rent, annuity, or other such payment) as soon as the entire portion of which it forms a part shall become due, and not before, and (in the case of a rent, annuity, or other such payment, determined by re-entry, death, or otherwise) as soon as the next entire portion would have been payable, and not before. The entire or continuing rent (including such apportioned part) is still recoverable by the heir or other person who, had the rent not been apportionable, would have been (b) Co. Litt. 202 a. (c) Lord Rockingham v. Penrice, (1711) 1 P. Wms. 178. S.C.-VOL. I. (d) Jenner v. Morgan, (1717) 1 P. Wms. 392. (e) Bk. ii., pt. i., ch. iv. E E entitled to the accruing portion; but the apportioned part is afterwards recoverable by action from such heir or other person, by the executors or other persons entitled under the Act to claim the same. Where the tenant under a lease has been lawfully evicted of part of the land demised, and out of which the rent issues; or where part of the land demised, and out of which the rent issues, has been surrendered by the tenant to the lessor; or where the lessor has aliened the reversion as to part; in all these cases, the rent must be apportioned, and so much of it only will be payable to the lessor as corresponds with the value of what is still held by the tenant under him (ƒ). But where the tenant has been tortiously expelled by the act of the landlord himself, even from a part of the premises only, there will be no apportionment; but the whole rent will be suspended so long as the expulsion continues (g). Annuities, unlike rents, are not payable out of land, though they may be chargeable upon land by express agreement. On the other hand, they bind the person of the grantor, and his estate will, indirectly, thus become liable to satisfy them. By a somewhat curious anomaly, an annuity, though personal, may be made payable to a man and his heirs; and may therefore be a hereditament. But it is not a tenement; and therefore it cannot be entailed (h). As regards incorporeal hereditaments, generally, we may remark, that many of them are (as was explained in speaking of commons (i)) capable either of being annexed as an accessory to some hereditament corporeal, or of existing independently and per se; being described, in the former case, as appendant or appurtenant, in the latter, as in gross. Where the connection of principal and (f) Co. Litt. 148 a. (g) Morrison v. Chadwick, (1849) 7 C. B. 283. (h) Co. Litt. 144 b; 20 a. accessory exists, the effect is, that the thing appendant or appurtenant will pass (without any particular mention of it) by any conveyance or alienation of the land to which it is annexed; and this whether the land be conveyed "with its appurtenances" or not (k). But if the principal be expressly conveyed without the accessory, or the accessory without the principal, as in some instances may be done, the accessory becomes thereafter, in either case, a thing in gross. Incorporeal hereditaments are not, in any strict and proper sense, the subjects of tenure, like those of the corporeal kind (); but similar estates may be had in incorporeal as in corporeal hereditaments (m). And in many respects, they are upon the same footing with regard to title, even where title depends upon an actual seisin or occupation; e.g., the rule seisina facit stipitem had in general the same application to things incorporeal as to things corporeal, that is to say, it governed all descents which took place on a death prior to the 1st of January, 1834. For, if a man who died before that day had what is equivalent to corporeal seisin in hereditaments that were incorporeal,—if, for example, in the case of a rent, he had obtained the actual receipt of it—such constructive seisin made him the root of descent with respect to these hereditaments, though he was not himself the purchaser (n). So, hereditaments of the latter as well as of the former description fall within the doctrine of special occupancy. For, though it seems that at common law there could be no title by common occupancy to things of which no corporeal or actual seisin could be had, yet the heir might have taken as special occupant (o). And incorporeal hereditaments are now expressly included in all the legislative provisions with (k) Conveyancing Act, 1881, s. 6. cases, be entailed (Co. Litt. 20 a). (The effect of this section is some- (n) Ibid. 156. what doubtful.) (7) Co. Litt. 20 a. (m) They may even, in many (0) Hassell v. Gowthwaite, (1744) Willes, 500; Bearpark v. Hutchinson, (1830) 7 Bing. 186. respect to estates pur auter vie, which we had occasion to notice in a former part of the work (p). On the other hand, in some important particulars, the law of title to incorporeal things differs from that which applies to thing corporeal. The former cannot in their nature pass by feoffment, but have always been capable of passing by grant (q); and therefore they were said (like remainders and reversions of hereditaments corporeal) to lie in grant and not in livery. And they would also pass by means of a surrender by deed (r), and by any conveyance operating under the Statute of Uses; for existing incorporeal hereditaments might be limited by way of use, and were executed by that statute accordingly (s). And now, by the Conveyancing Act, 1881, s. 62, easements, liberties, and other rights over land may even be created de novo by way of use. But it is not by grant alone that title may be made to an incorporeal hereditament. For, first, they may be created by reservation in a lease or other conveyance; as where a man seised in fee demises land to another for life or years, reserving a right of way or other easement. Second, there are certain so-called incorporeal hereditaments which may be claimed by custom, as for all the inhabitants of a certain hamlet to have a right of way over a certain field for a particular purpose; but no man can by custom claim a profit à prendre in the land of another (t). Besides which titles, there is, third, also the claim by prescription, which applies to almost every kind of incorporeal hereditament, as well to those which are appendant or appurtenant, as to those which are in gross. The subject of Prescription demands special consideration. And first, it is to be distinguished from custom; (p) Vide sup. pp. 255-257. (q) 2 Sand. Uses, 330. (r) Co. Litt. 338 a. s) The decision in Beaudely v. Brooke, (1607) Cro. Jac. 189, only decided that they could not be created by way of use. (1) Gateward's Case, (1607) 6 Rep. 59 b. (This rule, however, does not apply to copyholders claiming profits in the waste of a manor.) |