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Mr. Justice Tracy was of opinion, that this money was due, when by law it ought to be paid : and, therefore, since Lady Cole lived beyond sun-set, which was the time when the money was demandable, and to be paid by tenant upon pain of forfeiting his lease, he thought the money was due to her, and ought to be paid to her ; and that her administrator was entitled to the same,

Mr. Peere Williams says, Mr. Justice Tracy told him, that he advised with Lord Chief Justice .Holt at his chambers; and that, upon view of the several authorities relating to this point, his Lordship was of the fame opinion.

Strafford v.

$ 69. Sir Henry Johnson was tenant for life, with Wentworth, Prec. in Chan. remainder to Lady Wentworth: Sir Henry Johnson made 555.1 P. W. leases for years, reserving the rent at Lady Day and 180.

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 leases 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 reservation being on Michaelmas Day, as soon as either of those days began, they were at their peril to take care that they were paid accordingly. But, as to the leases made by virtue of a power, they still had existence : and, therefore, the tenants had till the last instant of those days to pay the rents; and then, when the lessor died before, the rent goes along with the reverfion to the person who is entitled to it.

care

an estate

$ 70. Sir James Oxenden, before marriage, settled Ld. Rocking

ham v. Penupon his Lady, the plaintiff, for her life, with rice, 1 P.W. a power to himself to make leases. Sir James Oxenden 178. made leases pursuant to this power, reserving the rent at Lady Day and Michaelmas, and died upon Michaelmas Day between 3 and 4 o'clock in the afternoon, and before sun-set. One of the lefsees paid his rent to Sir James Oxenden in the morning of the said Michaela mas 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 sun-set, and there being no remedy for the lessor to recover this rent during his life, it should go to the jointress: and that the executors of Sir James Oxenden should also pay the rent, which he received on the day of his death, to the jointress; though, as to this last point, there is a quere by the reporter.

$ 71. Where a rent-service was in arrear, the com- Of Difress mop law gave the

for Rent. gave the person in reverfion a right to enter

on

on the lands, and to seize the cattle and other personal chattels found there, and sell them for the payment of the rent, which is called a distress.

32 Hen. 8.

C. 37.

§ 72. By several modern statutes, this remedy is 8 ånn c. 14. extended to the proprietors of rent-charges, and to what 4 Geo.2. c. 28.

were formerly called rents seck, and to their executors or administrators, even after the determination of the leases, upon which rents are reserved.

Condition of
Re-entry,
Lit. f. 327.

S 73. It was formerly usual, where a feoffment' was made reserving rent, to insert a condition in the deed, that, if the rent was behind, it should be lawful for the feoffor or his heirs to re-enter and hold the lands, until he was satisfied for the rent in arrear. This was held not to be a condition, absolutely to defeat the estate; but the feoffor, on his entry, should 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 use.

, Inst. 203 d.

S 74. But Lord.Coke observes, that, if the words of the condition were, that the feoffor should re-enter and take the profits, until thereof he was satisfied, there the profits should be accounted as parcel of the fatiffaction.

S 75. The distinction, when the profits taken by the lessor after entry are, and when they are not to be in satisfaction of the rent, is not admitted in equity.

1 Inst. 203 a.

11. 3:

For,

For, the Court of Chancery will always make the lessor account to the lessee for the profits of the estate, during the time of his being in possession; and will decree him, after he has satisfied the rent in arrear, and the costs attending his entry and detention of the lands, to give up the poffefsion to the lefsee, and to pay him the surplus profits of the estate.

Lev. 170.

$76. In grants of rent-charges, a clause of entry on Clause of the lands, out of which the rent-charge issues, is usually Jemmott v. inserted ; in consequence of which, an interest vests in Cowley, the grantee, whenever the rent-charge is in arrear, T.Raym.135. which he may reduce into possession by an ejectment;

158. but the possession, thus acquired, is only till the grantee of the rent-charge is satisfied his arrears out of the rents and profits of the land.

$ 77. In case of a distress, no demand of rent is Gilb. 73. necessary; 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 tor. tious; because a condition or power of entry is in de. rogation of the grant: and, the estate at law being once defeated, it is not to be restored by any subsequent payment. It is therefore presumed, that the tenant is residing on the premises in order to pay the rent, for the preservation of the estate; 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 presumption, appears not to be on the land, ready to pay the rent, the

law

law will not give the lessor the benefit of re-entry, to defeat the tenant's estate, without a wilful default in him; which cannot appear, unless a demand is actually made on the land,

Tit. 24.

Right of

$ 78. In limitations of rent-charges, a power of Entry by Way of Use. entry is usually given by the operation of the statute

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 so conveyed a certain annual sum or

yearly rent-charge: and to this further use, intent, and Gilb. Rent,

purpose, that if such rent-charge be in arrear for a cer137.

tain time, it shall be lawful for B. and his assigns, to Havergill v. enter upon and hold the land, and receive the profits Hare, Cro. Jac. 510. thereof, until the arrears of the rent-charge are fatif

fied : here, as soon as the rent is in arrear, an use derived out of the feisin of the trustee or releasee to uses {prings up, and vests in the person to whom the

power Vide Tit. 11. of entry is given. This use is immediately transferred

into possession, by the operation of the statute 27 Hen. 8. He has, consequently, a right to take and keep that poffeffion, unul the purpose for which it is executed is fatisfied, and then the use determines. By virtue of this estate, he may make a lease for years to try his title in ejectment, either to obtain possession of the lands if it be withheld from him, or to restore it, if it be disturbed or devested : and, if he assigns 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 assignee.

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