Strafford v. 180. Mr. Juftice Tracy was of opinion, that this money was due, when by law it ought to be paid: and, therefore, fince Lady Cole lived beyond fun-fet, which was the time when the money was demandable, and to be paid by tenant upon pain of forfeiting his leafe, he thought the money was due to her, and ought to be paid to her; and that her adminiftrator was entitled to the fame. Mr. Peere Williams fays, Mr. Juftice Tracy told him, that he advised with Lord Chief Juftice Holt at his chambers; and that, upon view of the several authorities relating to this point, his Lordship was of the fame opinion. § 69. Sir Henry Johnson was tenant for life, with remainder to Lady Wentworth: Sir Henry Johnfon made 555.1 P.W. leafes for years, referving the rent at Lady Day and Michaelmas; and died on Michaelmas Day, about 12 o'clock at noon. The question was, whether these rents belonged to the executor of Sir Henry Johnson, or to Lady Wentworth; or, whether the tenants should retain them. Lord Macclesfield decreed, that, as to those leafes which determined on the death of Sir Henry Johnson, the rents belonged to his executors; because, though for the benefit of the tenants, they had till the last instant of Michaelmas Day to pay the rents, yet, the refervation being on Michaelmas Day, as soon as either of those days began, they were at their peril to take care care that they were paid accordingly. But, as to the leases made by virtue of a power, they ftill had existence and, therefore, the tenants had till the last inftant of those days to pay the rents; and then, when the leffor died before, the rent goes along with the reverfion to the person who is entitled to it. § 70. Sir James Oxenden, before marriage, fettled an estate upon his Lady, the plaintiff, for her life, with a power to himself to make leases. Sir James Oxenden made leases pursuant to this power, referving the rent at Lady Day and Michaelmas, and died upon Michaelmas Day between 3 and 4 o'clock in the afternoon, and before fun-fet. One of the leffees paid his rent to Sir James Oxenden in the morning of the faid Michaelmas Day, but the other tenants had not paid the rent. The question was, whether the rents, which were not paid, belonged to the executors of Sir James, or to the jointress. It was decreed by the Master of the Rolls, that, the leffor dying before fun-fet, and there being no remedy for the leffor to recover this rent during his life, it fhould go to the jointrefs: and that the executors of Sir James Oxenden fhould also pay the rent, which he received on the day of his death, to the jointress; though, as to this laft point, there is a quere by the reporter. § 71. Where a rent-service was in arrear, the com- Of Difirefs mon law gave the perfon in reverfion a right to enter on for Rent. on the lands, and to feize the cattle and other personal chattels found there, and fell them for the payment of the rent, which is called a distress. $ 72. By feveral modern ftatutes, this remedy is extended to the proprietors of rent-charges, and to what were formerly called rents feck, and to their executors or administrators, even after the determination of the leases, upon which rents are referved. S 73. It was formerly ufual, where a feoffment was made referving rent, to infert a condition in the deed, that, if the rent was behind, it fhould be lawful for the feoffor or his heirs to re-enter and hold the lands, until he was fatisfied for the rent in arrear. This was held not to be a condition, absolutely to defeat the estate; but the feoffor, on his entry, fhould only hold the land as a pledge, until he was paid the rent; and the profits should not go in discharge or on account of the rent, but should be applied to his own ufe. S 74. But Lord.Coke obferves, that, if the words of the condition were, that the feoffor fhould re-enter and take the profits, until thereof he was fatisfied, there the profits should be accounted as parcel of the fatiffaction. § 75. The distinction, when the profits taken by the leffor after entry are, and when they are not to be in fatisfaction of the rent, is not admitted in equity. For, For, the Court of Chancery will always make the leffor account to the leffee for the profits of the estate, during the time of his being in poffeflion; and will decree him, after he has fatisfied the rent in arrear, and the costs attending his entry and detention of the lands, to give up the poffeffion to the leffee, and to pay him the furplus profits of the estate. Entry. Cowley, 1 Lev. 170. T.Raym.135. $76. In grants of rent-charges, a claufe of entry on Clause of the lands, out of which the rent-charge iffues, is ufually Jemmott v. inferted; in confequence of which, an interest vests in the grantee, whenever the rent-charge is in arrear, which he may reduce into poffeffion by an ejectment; but the poffeffion, thus acquired, is only till the grantee of the rent-charge is satisfied his arrears out of the rents and profits of the land. 156. $ 77. In cafe of a distress, no demand of rent is Gilb. 73neceffary; but, where the remedy for the recovery of rent is by way of entry, there must be an actual de mand made previous to the entry, otherwise it is tortious; because a condition or power of entry is in derogation of the grant: and, the estate at law being once defeated, it is not to be reftored by any fubfequent payment. It is therefore prefumed, that the tenant is refiding on the premises in order to pay the rent, for the preservation of the eftate; unless the contrary appears, by the feoffor's being there to demand it. Therefore, unless there be a demand made, and the tenant thereby, contrary to the prefumption, appears not to be on the land, ready to pay the rent, the law Right of Tit. 24. Gilb. Rent, 137 Havergill v. Cro. Jac. 510. law will not give the leffor the benefit of re-entry, to defeat the tenant's eftate, without a wilful default in him; which cannot appear, unless a demand is actually made on the land. S 78. In limitations of rent-charges, a power of entry is usually given by the operation of the ftatute of uses: as, if lands are conveyed to A. and his heirs, to the use, intent, and purpose, that B. may receive out of the lands fo conveyed a certain annual fum, or yearly rent-charge: and to this further use, intent, and purpose, that if such rent-charge be in arrear for a certain time, it shall be lawful for B. and his affigns, to enter upon and hold the land, and receive the profits thereof, until the arrears of the rent-charge are fatiffied here, as foon as the rent is in arrear, an use derived out of the feifin of the trustee or releasee to uses fprings up, and vests in the person to whom the power Vide Tit. 11. of entry is given. This use is immediately transferred into poffeffion, by the operation of the statute 27 Hen. 8. He has, confequently, a right to take and keep that poffeffion, until the purpose for which it is executed is fatisfied, and then the ufe determines. By virtue of this eftate, he may make a leafe for years to try his title in ejectment, either to obtain poffeffion of the lands if it be withheld from him, or to restore it, if it be disturbed or devested: and, if he affigns over the rentcharge, this right of entry and perception of the rents and profits of the lands, charged with the payment of it, will pass the affignee, £.. $ 79. By |