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S 43. This statute only extends to rents, reserved on leases which determine by the death of the lessor : for, where the lease does not determine on that event, the person in remainder or reversion becomes entitled to the whole rent due from the day of payment, preceding the death of the tenant for life; but it has been extended to the executors of a tenant in tail, who died without issue, fome days before the rent be

came due.

§ 44. Tenant in tail, remainder to the defendant in Pagett v.

Gee, fee, leased for years; and died without issue a week Burn's Just.

vol. before the day of payment of the half year's rent.

1. p. 481.

Ambler's Rep. The lessee at the day paid all the half year's rent to 198. the defendant : the executor of the tenant in tail brought his bill for an apportionment of the rent. Lord Chancellor Hardwicke :—This point has never been determined; but this is so strong a case, that I fhall make it a precedent. There are two grounds for relief in equity. The first arises on the statute 11 Geo. 2. : the second arises on the tenant's having submitted to pay the rent to the defendant. The relief, arising upon the statute, is either from the strict legal construction, or equity formed upon the reason of it. And here it is proper to consider, what the mischief was before the act, and what remedy is provided at common law. If tenant for life, or any who had a determinate estate, died but a day before the rent, ' reserved on a lease of his, became due, the rent was loft: for no one was entitled to recover it. His representatives could not, because they could only bring an action for the use and occupation; and that would

not

not lie where there was a lease, but debt or covenant : nor could the remainder-man, because it did not accrue in his time. Now, this act appoints apportion: ing the rents, and gives the remedy. But there are two descriptions of persons, to whose executors the remedy is given ; in the preamble it is one, having only an estate for life ; in the enacting part, it is tenant for life. Now, tenant in tail comes expressly within the mischief: I do not know how the judges at common law would construe it ; but I should be inclined in this court to extend to them. I should make no doubt, where this is the case of tenant in tail after possibility of issue extin&: for he is considered in many respects, as tenant for life only. He cannot suffer a recovery: he may be enjoined from committing waste, such as hurts the inheritance, as felling timber ; though not for committing common waste, being considered as to that as tenant in tail. Where it is the case of tenant for years determinable on lives, he certainly must be included within the act; though it says only tenant for life : it would be playing with the words to say otherwise. These cases shew the necessity of construing this act beyond the words. Tenant in tail has certainly a larger estate than a mere tenant for life: for he has the inheritance in him, and may, when he pleases, turn it into a fee ; but, if he does not, at the instant of his death he has but an interest for life. Such too is the case of a wife, tenant in tail ex provisore mariti : upon this point I give no absolute opinion. As to the equity arising from this statute, I know no better rule than this; equitas fequitur legem : where equity finds a rule of law agreeable

or

to conscience, it pursues the sense of it to analogous cases. If it does so as to the maxims of the common law, why not as to the reasons of the acts of parliament? Nay, it has actually done fo on the statute of forcible entry, on which this court grounds bills, not only to remove the force ; but also to quit the possession. This court extends the reason to equitable interest; but I ground my opinion, in this case, on the tenant's having submitted to pay the rent. He has held himself bound in conscience, for the use and occupation of the land the last half year: he paid it to the defendant, which he was not bound to do in law. And, in such a case, the person he pays it to shall be accountable, and considered as receiving it for those who are in equity entitled thereto. The division must be that prescribed by the statute ; and then the plaintiff is entitled to such a proportion of the rent, as accrued during the testator's life. And accordingly it was so decreed.

$ 45. Henry Vernon being tenant in tail of estates Vernon v. in the county of Sussex died on the 17th of March an

Vernon,

2 Bro. R.659. infant, by which John Vernon one of the plaintiffs be. came tenant in tail of the estate.

Part of the lands was occupied by persons holding from year to year under the guardian, and their rents were payable at Lady Day and Michaelmas Day in every year, which demises expired by the death of Henry Vernon.

These

These rents having been paid into the hands of the receivers, the question was, whether the administratrix of Henry Vernon was entitled to the proportion of the rents from Michaelmas to the 17th of March, the day of his death, or the remainder-man was entitled to the whole.

The Master reported that a proportion of the rents was due to Henry Vernon on the day of his death; to which the remainder-man took an exception, that he ought to have certified, that no sum was due to H. Vernon on the day of his death, in regard, that he was tenant in tail of the estates of which the master certi. fied the said rents or proportions to be due.

Lord Chancellor Thurlow.-" The case of Paget 6 and Gee seems rather to be a decision, what the s statute ought to have done, than what it has done : “ but the question here seems to turn on another “ ground, that the tenant, holding from year to year, “ or from period to period, from a guardian without “ lease or covenant, cannot be allowed to raise an “ implication in his own favour, that he should hold “ without paying rent to any body."

The exception to the Master's report was overruled.

TITLE TITLE XXIX.

DESCENT.

CHAP. I.

Of the Title to Things real.

CHAP. II.

Of Descent and Confanguinity.

CHAP. III.

of the Rules or Canons of Descent.

CHAP. IV.

Of the Descent of Efates in Remainder and Reversion.

CHAP. V.

Of Descents by Statute and Custom.

CHAP. I.

Of the Title to Things real. Ý 2. Definition of a Title.

9. Discontinuance of an Estate 3. Pole/ion.

Tail. 4. Right of Polesion,

10. Pofeffon and Right of Pof8. Right of Property,

Jefion and Property.

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Section 1. HAVING treated of the several kinds of real pro

perty, both corporeal and incorporeal, and of the estates that may be had therein; it will now be

necessary

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