Page images

a case as this should not be considered as much an “ eviction, as if it had been an eviction by title : for " the destruction of the house is the destruction of “ the thing. Though this covenant does not extend

to oblige the defendant to re-build, yet when an s action is brought for rent, after the house is burned

down, there is a good ground of equity for an injunction, till the house is re-built.”

S 12. In a subsequent case of this nature Lord Steele v. Chancellor Appley is reported to have decided, that Cited i Term

Wright. though the landlord was not bound to re-build, yet Rep. 768 .

Treat. of Eq. the tenant was neither obliged to re-build, nor to pay B. 1. c.5.1.8. rent, till the premises were re-built.

S 13. With respect to the discharge of a rent- Discharge of charge, it is laid down by Littleton, § 222. that, if a

Rent-charge. man hath a rent-charge to him and his heirs, issuing out of certain land, if he purchase any parcel of this to him and to his heirs, all the rent-charge is extinct.

§ 14. Lord Coke says, the reason of this extinguish. i Inst. 147 b ment is, because the rent is entire and against common right, and issuing out of every part of the land ; and therefore, by purchase of part, it is extinct in the whole.

$ 15. Lord Chief Baron Gilbert observes, that the Rents, 152. reason of the difference between this case, and that of the purchase of part of the lands, out of which rent-service issues, is, because, in the case of a rentcharge, there is no connexion of tenure between the VOL. III. A 3


grantor and grantee, as there is in the case of a rentservice. And, as grants of rent-charges were of no benefit to the public, and afforded no additional * strength or protection to the kingdom, the law carried them into execution only so far as they could take effect according to their original intention : and, therefore, where the grantee by his own act prevented the operation of the grant, according to its original intention, the whole grant determined.


$ 16. Lord Coke also says, that, if the grantee of a rent-charge purchases parcel of the land, and the grantor by his deed, reciting the said purchase of part, granteth that he may diftrain for the same rent in the refidue of the land, this amounteth to a new grant.

2 Roll. Abi 414.

§ 17. If a person have a rent-charge, issuing out of twenty acres of land, and he releases all his right in one acre, this will extinguish the whole rent. charge.

$ 18. It frequently happens in practice, that a person entitled to a rent-charge is disposed to exonerate part of the lands from the payment of it; but, in consequence of the above doctrine, difficulties have arisen in settling the mode of effecting such exoneration, without risking the entire extinguishment of the rent-charge. The common mode has been, for the grantee of the rent-charge to join in the conveyance of the lands; which operates as a release of the lands conveyed from payment of the rent-charge, and to infert a proviso in the deed, that the other lands shall continue subject to the rent-charge: and it is held upon the authority of Lord Coke, that this proviso will operate as a new grant of the rent-charges


To this mode there is a material objection : for such new grant would be subject to any incumbrances, created subsequently to the grant of the original rentcharge, but prior to the conveyance of part

of the lands.

S 19. Another mode is sometimes adopted ; namea ly, to obtain a covenant from the grantee of the rentcharge, that he will not distrain or enter upon the premises conveyed, for the recovery of his rentcharge. But there is a case in which one of the Butler v.

Monnings, judges held, that such a covenant would operate as a Noy 5. vi: release of the whole rent-charge, though Anderson was Duex v.

Jefferies, of a different opinion.


S 20. It is now a common practice, where a person entitled to a rent-charge is disposed to exonerate a part of the lands charged with it, to have a separate agree: ment beïween the proprietor of the rent-charge and the purchaser; by which it is stipulated, that the proprietor of the rent-charge shall execute such a con: veyance as shall be deemed necessary for the purpose of discharging the lands purchased from the payment of the rent-charge. Provided, that such conveyance shall not bar the proprietor of the rent from levying it out of the other lands, whereon it is charged; with an agreement, that the proprietor of the rent shall not in the mean time distrain, or enter upon the lands A a 2


purchased, for the purpose of compelling payment of the rent. Such an agreement, not being a deed, cannot be pleaded as a release in a court of law: and, in equity, the purchaser might obtain upon it an injunction, to restrain the proprietor of the rent-charge from claiming it out of the lands purchased.

Apportion- S 21. There are many cases, in which rents may be ment of a Rent-charge. apportioned, as well by the act of the party, as by aêt

of law.

Gilb, 163.
i Inst. 148 a.

Thus, where the grantee of a rent-charge releases part of the rent to the tenant, such release will not extinguish the whole rent; but the part not released will still continue.


$ 22. So, if the grantee of a rent-charge conveys part of it to a stranger, and the tenant of the land attorns, such grant will not extinguish the residue, which was not parted with; because such release or disposition makes no alteration in the original grant ; nor does it defeat the intention of it, as the purchase of part of the land does : for the whole rent is still illuable out of the whole land, and charged according to the original intention of the grant. Besides, since the law allowed of such grants, and thereby established this kind of property, it would have been unreasonable and fevere, to hinder the proprietors of rent-charges from dividing them, for the promotion of their children.

S 23. Lord

S 23. Lord Chief Baron Gilbert observes, that the Rents, 164.

Cro. Eliz. objection, which has been made against this kind of

742. apportionment of rent-charges, is this ;—that the tenant would be thereby exposed to several suits and distrelles for a thing, which in its original creation was entire, and recoverable upon one avowry; but the answer is obvious, that it is in the tenant's choice, whether he will submit himself to this inconvenience, by his attornment to the grant of a part of the rentcharge.

$ 24. Since Lord Chief Baron Gilbert wrote, the necessity of an attornment is taken away; but still a division or apportionment of a rent-charge, by a conveyance


of it to a stranger, is held good.

$ 25. A rent-charge may be divided, and apportioned by act in law : for a part of a rent-charge may Wotton v. be extended by a scire facias ; and, though the tenant Cro. Eliz.742. is thereby without his attornment made liable to several suits and distresses; yet it is an inconvenience, which he may avoid by a pun&ual payment of his Gilb. 165.


S 26. If

part of the lands, subject to a rent-charge, Gilb. 156. descend to the grantee of the rent-charge, it shall be Lit. s. 224. apportioned according to the value of the land : for, in this case, the grantee is perfectly passive, and concurs not by any act of his to defeat the intention of

the grant.

$ 27. With respect to the apportionment of rent- Apportionservice, it has been stated, that, where a person hav- ment of Rer.t.



A a 3

« PreviousContinue »