Page:Harvard Law Review Volume 10.djvu/117

91 A BRIEF SURVEY OF EQUITY JURISDICTION. 91 the right to distrain is not given, or where that remedy has been exhausted and still the rent is in arrear, and where the rent-owner is not entitled by summary proceedings to recover possession of the land out of which the rent issues, and that too by a title unim- peachable at law or in equity, it seems clear that he is entitled to the aid of equity, for the purpose of securing the application of the net income of the land to the payment of the rent. It remains to call the reader's attention briefly to the authorities upon the subject of the jurisdiction of equity over rents. Equity began to interfere in favor of rent-owners as early as the reign of Elizabeth, and the time of Lord Chancellor Ellesmere. At first, however, it confined its interference to the cases in which there was some obstacle (which equity regarded as technical and unsubstan- tial) in the way of a legal remedy. Thus, in Web v. Web ^ (42 Eliz.), where a rent was given by will, without any right to distrain, or any right to enter for non-payment, and the devisee had not been able to obtain seisin, and consequently could neither have a writ of assize, nor a writ of annuity, nor an action of covenant, nor an action of debt (as the rent was undoubtedly for the life of the devisee at least), nor distrain, nor enter upon the land, it was decreed that the tenant of the land pay the rent, notwithstanding the want of seisin in the devisee. So in Ferrers v. Tanner ^ (44 Eliz.), which presented substantially the same facts, the plaintiff was relieved, though it is not clear what was the relief given. According to one book, the defendant was simply decreed to give seisin to the plaintiff. The further fact is stated that the devisee of the land promised the testator to pay the rent, and thus pre- vented his taking other means of securing its payment; and this latter fact was regarded as strengthening the case in point of jurisdiction. Again, in Shute v. Mallory^ (5 Jac. I.), where a lessor had assigned his reversion to the plaintiff, and the lessee (the defendant) refused to attorn, Lord Chancellor Ellesmere decreed him to attorn, and to pay the rent. In the foregoing cases, however, it is to be observed that the bill was not founded directly upon the ownership of the rent, but upon an equitable obligation {i.e., an obligation imposed upon the defendant by equity) either to give the plaintiff seisin and to attorn to him, or not to set up the defence of want of seisin or want of attornment. 1 Moo. 626. 2 Moo. 626, pi. 85; cited i Ch. Cas. 147 {nom. Ferris v. Newby), and 3 Ch. Cas. 91.
 * Moo. 805.