Page:Harvard Law Review Volume 10.djvu/104

78 78 HARVARD LAW REVIEW. the creditor never has any more than an obligation on the prop- erty, yet that obHgation is an absolute and unqualified obligation to pay the debt, and hence nothing short of an actual extinguish- ment of the debt can release the property; and a tender and refusal, so far from extinguishing the debt, leaves it still due and payable.^ A pledge, hypothecation, or lien, as has been seen, is generally accessory, collateral, or incidental to a personal obligation by which the debt is created, and which therefore constitutes the principal obligation. A real obligation may, however, itself create a debt and so be a principal obligation; and, in that case, if there be also a personal obligation on the part of the owner of the property to pay the debt, the latter will be merely accessory to the real obhga- tion. There are in English law two real obligations in particular which are always principal obligations, namely, rent and predial tithe. In each of these, the property bound is land; and yet in each it is not the corpus of the land, but its fruits, or the income produced by it, that is bound. Each, therefore, according to the nomenclature of the law of Scotland, is a debitiim fricctuuniy — not a debitiim fundi. Hence, each is payable periodically; and hence also, when a payment becomes due, it becomes a personal obligation of the occupier of the land, who has received the fruits out of which the rent or tithe in question was payable. The right to receive either rent or tithe in future is real estate, and is trans- ferable, and, upon the death of its owner, it goes to his heir in the case of rent, and to his successor in the case of tithe ; but the mo- ment that a payment becomes due, its character changes, and it becomes personal estate and a cJiose en action^ and consequently is not assignable, and on the death of its owner it goes to his execu- tor or administrator. Hence, when an owner of rent or of tithe dies, his right to receive future payments goes in one direction,, while the right to receive any payments that may be in arrear goes in another direction. Rent is created by the act of the owner of the land out of which the rent issues. The act by which a rent is created is either a res- ervation or a grant. A rent is created by a reservation when the owner of land grants it to another person for years, for life, in tail, 1 See preceding note. To be sure, if the creditor sue the debtor for the debt, the latter may plead the tender and refusal, but, to make his plea good, he must also allege that he has always been and still is ready and willing to pay the money so tendered, and he must bring the same into court, ready to be paid to the plaintiff, if he will accept it.