Page:The Green Bag (1889–1914), Volume 04.pdf/309

 284

term is not a rent of the kind described by Blackstone as an incorporeal hereditament. When a lessee pays the owner of the fee simple or the freehold for his enjoyment of the land, — whether on a month's holding or on ninety-nine years, whether by formal contract or for use and occupation, — this rent is a mere incident to the fee, and not a distinct hereditament at all. To be such, it nuist be payable to some one who is not seized of the freehold, and to his heirs. A life-rent payable to one not owner of the freehold is to be classed, not as a heredita ment, but like any other life estate in heri table property as a tenement.1 The rent-service of Blackstone is now an incorporeal hereditament, because the free hold is in the tenant who pays; but it has an analogy with the above, because both imply that the tenant derives his title from the lord. The rent-charge of Blackstone is one also in the modern view, but there is no tenure between the holder of the land and the rentowner. Each of them has an interest in the land quite independent of the other. The rent, in its purest and really simplest form of rent-charge, was not a debt due from the owner of the land, as it afterward came to be regarded. It was the ownership of a certain fixed portion of the profits of the land, pur chased by the gross sum laid out in it, as an indefinite or aliquot part of those profits might be purchased by a tenant in common. The whole doctrine can hardly be under stood unless this fundamental point is clearly seen. This explains why seisin could be had of a rent (even after it was regarded as an incor poreal hereditament), and why the assizes could be brought for it, precisely as for land. It is in no sense a mere easement or appur tenance or issue or profit a prendre. It is a substantial property in itself, held by a title 1 " Rents-charge, though not strictly the subject of com mon law tenure, are so closely connected with things that are that they are admitted to the privileges of the Statute de Donis." H. W. Challis, in 6 L Q. K. 69.

and estate quite distinct from that of the tenant who occupies the land, and is bound to see the rent paid out of it; though this tenant in turn does not depend for his title and estate on the rent-owner, who is not his landlord. This double nature of rents, partaking both of corporeal and incorporeal quality, is not peculiar to English law, but is found also in the primitive Germanic law of the Continent. Albrecht 1 has discussed it fully, and shows that the object of the rent, the thing to which the right of the rent-owner attaches, is in a certain sense the land out of which the rent proceeds, and that he may be said to be seized of the land (has a gewere in it); his rights in their most characteristic qualities resembling those of a land-owner who has leased to a tenant for a fixed rent (p. 158). (The resemblance in the two cases is obvious; but the latter case, as already shown, would not be one of a true rent in the modern English sense of the word.) Consequently it is immovable, requires gerichtliche anjlassiing (Eng., livery of seisin) to a complete title, goes to the heir, and is even subject to the jus retractus. But it has also a personal element 2 (p. 167;. Before the Norman Conquest the concep tion of a hereditament, and of course the distinction of corporeal and incorporeal hereditaments, was unknown, though the same deed often conveyed land and rights in other land together, — commons of pasture, in woods, etc. Land as well as easements might be appurtenant to other land; that is, the subsequent technical doctrine of appurte nances was as yet unthought of. In C. D. 1041, v. 88, Ethelwolf of Kent (a. d. 832) grants both kinds of property and (inter alia) a villa in Canterbury, to which pertain five jugera of land and two meadows iprata), one in Sheltorye and the other in 1 Gewere, § 18 (Kentekauf), pp. 157, etc. 2 On this personal element in rent-service and rentcharge, and the nature of rent as an incorporeal heredita ment, see Duncker-s essay, " Keallasten durch Verliag," in " Zeitschi ift fur ueutsches Rtcht," xi. 450-491.