Page:The Green Bag (1889–1914), Volume 04.pdf/313

 288

It was a form of ownership, a right to take a certain specified part of the profits of the land as the tertenant took the rest of them. The fact that this also could be held in de mesne or freehold, and that an assize could be brought for it, is clear proof of its original nature, and illustrates more clearly perhaps than any other single point, the extent to which the possession of land was already idealized at an early day; —-the fact that the lord who merely took the profits of the land was as directly seized of it as the tenant who ploughed it. Even the discrimination be tween seisin of the rent and seisin of the land is probably a later refinement.

The designations of rent as a right in rem, as an incorporeal hereditament, are only later and more scientific expressions of this orig inal view. It merges in the freehold out of which it proceeds, whenever the two are united in one person. A man cannot have rent out of his own land.1 A proviso that a rent-charge shall not bind the lands, but only the grantor, is repugnant to the very nature of the rent, and void : seats of an annuity, which is a personal charge in its nature.2 Debt could be brought for arrears of rent on a tenancy for life after it was terminated by a re-entry, as is shown in Mich. 39 Edw. III. fo. 22, — a case which seems to decide simply a variance between the writ and the deed on which it was founded. Lessee had sublet, and the sublessee was in arrears for three terms, " wherefore the lessor entered, by force of which entry action accrued to him to demand the arrears by a writ of debt." Finch for debt or pleads a variance in the name of plaintiff as given in the writ and in the lease, and Kerton for plaintiff argues that the action is not on the lease, to which defendant is a stranger, but " the duty commences in his own default of payment." Finch admits the last, but maintains that the action is still on the lease. Skipwith : " when the rent was be hind, still before the entry no action was given for it except to distrain, because it was then freehold, wherefore the right of action began with the entry, which was your own fault; therefore the deed is not simply the cause of the duty, but the arrears and the entry by force of the condition." To this it was said that the entry was based on the condition, and that could not be proved without the deed. Wherefore Knivet, J., decides against the plaintiff, because his action depends on

1 Brook. Assize, 476. V. B. 15 Ass. II. Fitzh. Charge, 6 '- 7 Coke R. 23. Butts' case : rent cannot issue from a leasehold, but may be distrained on it. 31 Ass. 27; 41 Ass. 3. 3 Brook, Charge, 17. 41 Edw. III. 15 b. 41 Ass. 3. 4 Brook, Charge, 22, cites 20 Ass. I. 5 29 Ass. 52. Co. Litt 153. 0 Co. Lilt 201 b.

1 Brook, Prescription, I, citing 26 Hen. VIII. 5, where it was held that an annual payment of C10 made to the lord as a condition of commoning was an annuity, and not a rent. So, in strict language, is every payment to an owner for the use of his premises or upon a term for years Pos sibly some difficult questions in modern law might have been avoided if the terms had not become mixed. ' Co. Litt. 146 b.

charge consists. Thus, on a grant of £20 rent out of an entire manor, of which £10 by the hands of A and £10 by the hands of B, the rent is single, and one assize lies for it.1 But the distress is not to be confounded with the charge. It was repeatedly held that where a rent is charged on one land, and if it be in arrear, its owner might distrain in another, the latter was but a penalty or for greater surety.2 Even a rent-seek may have distress on lands other than that on which it is charged. This will be considered as only a penalty.3 So an obligation to pay at a certain place other than the land charged does not prevent the rent issuing out of the land charged.4 Where demand on the land is necessary, it need not be of any person,5 " because the land is the debtor."6 The action of debt was excluded as a remedy for the recovery of rent, not by any technical rule, but by the very nature of the right to be enforced. Rent belonged to the same class of rights with customs and services, and became differentiated from them only as the • use of money in the community increased.