Lessee by his conduct waived ob a bill against C.'s executors (who admitted assets) for a specific performance of the agreement, and offered so to qualify the covenants of the lease as that the executors should be no further liable thereon than they would have been on the covenants which ought to have been entered into by the testator, in case a proper lease had been made to him. The court of chancery decreed specific performance of this agreement, with a reference to the master, to settle the lease. (x) In a suit for a specific performance of an agreement to accept a lease, the court considered considering the defendant, (the intended lessee,) by as having his conduct, to have waived all objections to the jections to vendor's title, decreed a specific performance of the title. agreement, and referred it to the master to settle the lease. In settling the lease it became necessary for identifying the premises to produce before the master the original lease, under which the plaintiff was entitled to the property, and from which lease it appeared that the property in question was held with other property at one entire rent, and under some special covenants, no provision with respect to which was made in the agreement between the plaintiff and the defendant. On the hearing for further directions, these facts being brought before the court in the shape of exceptions to the report, it was held, that though the defendant had by his conduct waived his right to the production of the lessor's title, yet, as in the course of the proceedings, it had become necessary to produce that title, and that production showing that a sufficient lease. could not be made to the defendant according to the agreement, the court would not enforce a spe- Insolvency. cific performance, and the bill was dismissed but without costs. (y) It is no defence to a bill filed against a landlord for specific performance of an agreement for a farming lease, by a person to whom the benefit of the agreement has been assigned, that the party with whom the landlord contracted has (x) Phillips v. Everard, 5 Sim.102. M become insolvent, provided the assignee is solvent, and in a condition to enter into the usual covenants, and there is no evidence that the contract was entered into upon considerations personal to the Bankruptcy assignor.(~) Where a landlord agrees to grant a lease to A., his executors and assigns, upon certain conditions, and A. assigns his interest in the contract to B., and then becomes bankrupt, B., on performing the conditions, has a right to enforce the agreement specifically, notwithstanding his assignor's bankruptcy; and this right is not effected by a proviso that in case of the bankruptcy of A. the landlord shall have power to re-enter, and sell the benefit of his contract, and the premises, and hold the proceeds, subject to his own claims for Insolvency. the use of A.'s estate. (a) The insolvency of the intended lessee is a good ground of objection to a bill brought by him for the specific performance of a contract to renew a lease. (b) (z) Crosbie v. Took, 1 Myl. and Keen. 431. APPORTIONMENT OF RENT.(c) APPORTIONMENT of rent is defined to be a Apportiondividing of rent into parts, according as the land ment of rent (e) Sir William Blackstone, in his Commentaries, says, that rents are What are the last species of incorporeal hereditaments; that rent or render, reditus, rents. signifies a compensation or return, it being in the nature of an acknow ledgment given for the possession of some corporeal inheritance, and that it is defined to be a certain profit issuing yearly out of lands and tenements corporeal; that it must be a profit; yet, that there is no occasion for it to be, as it usually is, a sum of money; for capons, horses, corn, and other matters, may be rendered, and frequently are rendered, by way of rent; and that it may also consist in services or manual operations; as, to plough so many acres of ground and the like; which services, in the eye of the law, are profits. This profit must be certain, or that which may be reduced to a certainty by either party. It must also issue yearly, though there is no occasion for it to issue every successive year; but it may be reserved every second, third, or fourth, year; yet, as it is to be produced out of the profits of lands and tenements, as a recompense for being permitted to hold or enjoy them, it ought to be reserved yearly, because those profits do annually arise, and are annually renewed; that it must issue out of the thing granted, and not to be part of the land or thing itself (wherein it differs from an exception in the grant, which is always of part of the thing granted); and that it must, lastly, issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner or grantee of the rent may have recourse to distrain; therefore, a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the like. But a grant of such annuity or sum (or, indeed, out of any incorporeal hereditament) may operate as a personal contract, and oblige the grantor to pay the money reserved, or subject him to an action of debt; though it doth not affect the inheritance, and is no legal rent in contemplation of law. See 2 Wood, 69. Laugher v. Humphrey, Cro. El. 524. And see Black. Com. c. 2, p. 42. rents. In Littleton's Tenures it is said that there are three manner of rents. Of different rent service; rent charge; and rent seck. And Wood, in his Institutes, says, rent service is so called because it has some corporeal service incident to it, as at the least fealty, or the feodal oath of fealty. For if a tenant holds his lands by fealty, and ten shillings rent, or by the service of ploughing the lord's land, and five shillings rent, these pecuniary rents being connected with personal service are therefore called rent service. A rent charge is where one grants to another a rent out of his land, with a clause of distress for non-payment. Rent seck (reditus siccus, or barren rent) is where a grant is made without a clause of distress.-See Lit. Ten. s. 213, 2 Wood, 69. There are other species of rents which are reducible to these three. Rents of Rents of assize which are certain established rents of freeholders and ancient assize. copyholders of a manor, which cannot be departed from or varied. (Those of the freeholders are frequently called chief rents, reditus capitales; and both sorts are indifferently denominated quit rents, quieti reditus, because thereby the tenant goes quit and free of all other services.) Rack rent is Rack rent, only a rent of the full value of the tenement, or near it. A fee farm rent and fee farm is a rent charge issuing out of an estate in fee, of at least one fourth of the rent. value of the lands at the time of its reservation.-See Co. Lit. 143, a. Black. v. 2, c. 2, p. 43. (But Hargrave thought the name of fee farm rent was founded on the perpetuity of the rent or service, and not on Co. Lit. 144-148, Abr. 505. 1 Peere, according to out of which it issues is divided among two or more. As if a stranger recovers part of the land, a lessee and Danv. shall pay, having regard to that recovered, and what remains in his hands. Where the lessor recovers part of the land, or enters for a forfeiture into part thereof, the rent shall be apportioned. So if a man lease three acres, rendering rent, and afterwards grants away one acre, the rent shall be apportioned. Before the statute 11 G. 2, c. 19, by the death of a tenant for life, in an intermediate quarter, such quarter was lost; for the law would not suffer his representatives to bring an action for the use and occupation, much less if there was a lease, and the remainder man had no right because the rent was not due in his time, nor could 11 G. II., c. equity relieve against this hardship by appor19, appor- tioning the rent. But by the 11 G. 2, c. 19, s. 15, (d) where any tenant for life shall happen to Wms. 392. tionment. Distress. the quantum.-See Harg. Co. Lit. 143 a., n. 5.) All rents are now recoverable by distress, by virtue of the statute 4 G. II., c. 28. Rent is regularly due and payable upon the land from whence it issues if no particular place is mentioned in the reservation. And strictly, the rent is demandable and payable before the time of sunset of the day whereon it is reserved, though perhaps not absolutely due till midnight. Cases de- (d) By an equitable construction of this statute, upon the death of cided under tenants in tail, the rent shall be apportioned where leases are determined the stat. 11 by their deaths.-Paget v. Gee, Amb. 198. 3 Swanst. 694. Land tax, quit G. II. rent, &c., not apportionable under this act, as between tenant for life and remainder man.-Sutton v. Chaplin, 10 Ves. jun. 66. Upon the renewal of a beneficial lease by a tenant for life, the fine was apportioned between him and the remainder man, in proportion to their respective interests.-Nightingale v. Lawson, 1 Bro. C. C. 440. A lessor of two houses adjoining each other, at one entire rent, conveyed one of them to a purchaser at an apportioned rent, without the consent of the lessee; it was held that such apportionment should have been made by a jury to give it validity, and that the lessee was not bound.-Bliss v. Collins, I Dow. and Ryl. 291. 5 Barn. and Alder. 876. A tenant for life, with power to lease by deed, &c., inakes a parol demise from year to year: upon his death the lessee's interest determined, and the rent was apportionable.—Er parte Smith, 1 Swans. 337. And in the same case, where some of the leases were by parol, and some in writing, but not conformable to the power of the tenant for life, upon his death, which took place before the expiration of the year, the rents were apportionable.-Id. The administrator of a tenant for life not having lived long enough to have a right to determine the yearly tenancy, the lands having been devised to him from a tenant in fee, it was held that he (the administrator) was not entitled to an apportionment of rent under s. 15 of this statute.- Botheroyd v. Wolley, 5 Tyr. 522. 1 Gale, 66. Where part of the lands had been demised to a third party prior to the parol demise to the lessee for a year, which included such part, it was held that the lessee took an interesse termini in the part previously demised, and that while out of possession the rent was not suspended, but was apportioned, and might be distrained for.-Neale v. Mackenzie, 2 Cromp. Mee. and Ros. 84. 1 Gale, 119. W.IV., c. 22, ing the that doubts die before or on the day on which any rent was reserved or made payable upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, the executors or administrators of such tenant for life, may, in an action on the case, recover of and from such under-tenant of such lands, &c., if such tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion of such rent, according to the time such tenant for life lived of the last year, or quarter of a year, or other time in which the said rent was growing due as aforesaid, making all just allowances, or a proportionable part thereof respectively. The stat. AND by the 4 W. IV., c. 22, for amending the said for amendact of the eleventh year of king George the Second, above act of respecting the apportionment of rents, annuities, 11 G. II. and other periodical payments, (e) after reciting Reciting such act, and that doubts had been entertained had arisen whether the provisions of the said act applied to as to the every case in which the interests of tenants deter- of the act. mine on the death of the person by whom such interests have been created, and on the death of any life or lives for which such person was entitled to the lands demised, although every such case is within the mischief intended to have been remedied and prevented by the said act, and that it was therefore desirable that such doubts should And that by be removed by a declaratory law; and that by rents were law, rents, annuities, and other payments, due at not apporfixed or stated periods, were not apportionable, (unless express provision be made for the purpose,) from which it often happened that persons (and their representatives) whose income was wholly or principally derived from these sources, by the determination thereof, before the period of payment arrived, were deprived of means to satisfy just demands; and other evils arose from (e) By the statute for the commutation of tithes, 6 and 7 W. IV., c. 71, s. 86, it is enacted, that all rent charges payable under that act, shall be subject to all the several provisions of the above act of 4 W. IV., c. 22. application law certain tionable. |