Strafford v. Wentworth, Prec. in Cha. 555. rent remained due to Lady Cole, so as to entitle her administrator thereto. Mr. Justice Tracy was of opinion that the rent was due, when by law it ought to be paid; therefore since Lady Cole lived beyond sunset, which was the time when the money was demandable, and to be paid by the tenant upon pain of forfeiting his lease, he thought the money was due to her, and ought to be paid to her administrator. 59. Sir Henry Johnson was tenant for life, with reIP. Wm. 180. mainder to Lady Wentworth. Sir H. Johnson made leases for years, reserving the rent at Lady-day and Michaelmas, and died on Michaelmas-day about twelve o'clock at noon. The question was, whether these rents belonged to the executor of Sir Henry Johnson or to Lady Wentworth; or whether the tenants should retain them. Rockingham บ. Penrice, Lord Macclesfield decreed, that as to those leases which determined on the death of Sir H. Johnson, the rents belonged to his executors; because, though for the benefit of the tenants, they had till the last instant of Michaelmas-day to pay the rents, yet the reservation being on Michaelmas-day, as soon as that day began they were at their peril to take care that they were paid accordingly. But as to the leases made by virtue of a power, they still had existence; therefore the tenants had till the last instant of the day to pay the rent then, when the lessor died before, the rent went along with the reversion, to the person who was entitled to it. 60. Sir James Oxenden, before marriage, settled an 1P. Wms. 178. estate on his lady, the plaintiff, for her life, with a power to himself to make leases. Sir J. O. made leases pursuant to his power, reserving the rent at Lady-day and Michaelmas; and died upon Michaelmas-day, between three and four o'clock in the afternoon, before sunset. One of the lessees paid his rent to Sir James Oxenden in the morning of the said Michaelmas-day: but the other tenants had not paid their rents. The question was, whether the rents which were not paid belonged to the executors of Sir J. Oxenden, or to the jointress. It was decreed by Sir John Trevor, M. R., that the lessor dying before sunset, and there being no remedy for the lessor to recover these rents during his life, they should go to the jointress; and that the executors of Sir J. O. should also pay the rent which he received on the day of his death, to the jointress. But as to this last point there is a query by the reporter. 61. Rent service is now sometimes apportioned between the executor of a tenant for life, and the remainderman; of which an account will be given in the third Chapter of this Title. 62. A rent-charge of inheritance is also a real property, descendible to the heir. But from the moment that a payment of it becomes due, that payment is personal property, and will go to the executor or adminis trator. recovery of 63. With respect to the remedies for the recovery of Remedies for rents, there are several sorts, of which some are pro- rents. vided by the common law, some by particular statutes, and some by the express agreement of the parties. 64. Where a rent-service is in arrear, the common Distress. law gives to the person in reversion a right to enter on the lands, to seize the cattle, and other personal chattels found there, and to sell them for payment of the rent; which is called a distress. Att.-General v. . Coventry, 1 P. Wms. 306. 65. If a person holds lands of the King, by the pay- 2 Inst. 122. ment of rent, and the rent is in arrear, the King may distrain in any other lands or tenements of the tenant. This must, however, be understood of such other lands as his tenant has in his own actual possession, and are manured with his own beasts; but not in the possession of his lessee for life, years, or at will; for their beasts are not subject to such distresses. The grantee of a fee farm rent from the Crown has the same privilege. Clause of re-entry. Lit. 5.327. 66. The remedy by distress is extended, by several statutes, to the proprietors of what were formerly called rents seck, and also to rent-charges; and is given to the executors and administrators of the proprietors of such rents, even after the determination of the leases upon which such rents are reserved. 67. It was formerly usual, where a feoffment was made, reserving rent, to insert a condition in the deed that if the rent was behind, it should be lawful for the feoffor and his heirs to re-enter and hold the lands till he was satisfied for what was in arrear. This was held not to be a condition absolutely to defeat the estate; but that the feoffor on his entry should hold the land as a pledge, till he was paid his rent. And that the profits should not go in discharge of the rent, but 1 Inst. 203. a. should be applied to his own use. Lord Coke, however, observes that if the words of the condition were, that the feoffor should re-enter and take the profits, till thereof he was satisfied; there the profits should be accounted as part of the satisfaction. Idem, n. 3. Jemmott v. Cowley, J Lev. 170. T. Raym. 135, 158. 68. The distinction when the profits taken by the lessor after entry are, and when they are not to be, in satisfaction of the rent, is not admitted in equity. For the Court of Chancery will always make the lessor account to the lessee for the profits of the estate, during the time of his being in possession; and will compel him, after he has satisfied the rent in arrear, and the costs attending his entry, and detention of the lands, to give up the possession to the lessee, and to pay him the surplus profits of the estate. 69. In grants of rent charges, a clause of entry on the lands out of which the rent charge is granted is usually inserted; in consequence of which an interest vests in the grantee, whenever the rent-charge is in arrear; which he may reduce into possession by an ejectment. But the possession thus acquired is only till the grantee of the rent-charge is satisfied his arrears out of the rents and profits of the land. 70. In case of a distress, no demand of the rent is necessary but where the remedy for the recovery of rent is by way of entry, there must be an actual demand made, previous to the entry, otherwise it is tortious; because a condition or power of entry is in derogation of the grant; and the estate at law being once defeated, it is not to be restored by any subsequent payment. It is therefore presumed that the tenant is residing on the premises, in order to pay the rent, for the preservation of the estate, unless the contrary appears, by the feoffor's being there to demand it. So that unless there be a demand made, and the tenant thereby, contrary to the presumption, appears not to be on the land, ready to pay the rent; the law will not give the lessor the benefit of re-entry, to defeat the tenant's estate, without a wilful default in him; which cannot appear, unless a demand is actually made on the land. Gilb. 73. entry by way of use. Gilb. 137. Havergill Cro. Ja. 510. 71. In the creation of rent-charges, a right of entry Right of is now usually given by the operation of the statute of Uses. As if lands are conveyed to A., to the use, intent, and purpose that B. may receive out of the v. Hare, lands so conveyed a certain annual sum or yearly rentcharge; and to this further use, intent, and purpose, that if such rent-charge be in arrear for a certain time, it shall be lawful for B. and his assigns to enter upon and hold the land, and receive the profits thereof, till the arrears of the rent-charge are satisfied. Here, as soon as the rent is in arrear, a use, derived out of the seisin of the trustee or releasee to uses springs up, and vests in the person to whom the power of entry is given, which is immediately transferred into possession, by the operation of the statute 27 Hen. VIII.: he has consequently a right to take and keep that possession, till the purpose for which it is executed is satisfied; when the use determines. By virtue of this estate he may make a lease for years to try his title in eject a Tit. 11. c. 3: 2 Ejectment. 1 Saund. R. 287. n. 1 Burr. 620. 7 Term R. 117. 1 Inst. 202 a. 7.3. Actions of debt and covenant. Ante, § 20. Courts of Treat. of Eq. §3. Bridges v. Ca. 368. ment, either to obtain possession of the land, if it be with-held from him, or to restore it, if it be disturbed or devested; and if he assigns over the rent-charge, this right of entry and perception of the rents and profits of the lands, charged with the payment of it, will pass to the assignee. 72. By the statute 4 Geo. 2. c. 28. s. 2. it is enacted, that every landlord, who by his lease has a right of re-entry in case of non-payment, when half a year's rent is due, and no sufficient distress is to be found, may serve a declaration in ejectment on his tenant, and affix the same on some notorious part of the premises; which shall be valid without any formal reentry, or previous demand of rent and that a recovery in such ejectment shall be final and conclusive, both in law and equity; unless the rent and all costs be paid within six calendar months after. 73. By the fourth section of this statute it is provided, that if the tenant, at any time before the trial in ejectment, pays or tenders to the lessor or landlord the whole rent in arrear, with the costs; or pays such arrears and costs into Court; the proceedings in ejectment shall cease and be discontinued. 74. In most cases an action of debt may now be brought for rent. And in all modern leases wherein rent is reserved, a covenant is inserted, on the part of the lessee, to pay the rent; on which an action of covenant may be brought. 75. As it is a maxim of equity that a right shall not be without a remedy, the Court of Chancery will, in some cases, give its assistance to persons entitled to rent but equity will not afford a remedy for rent, when there is one at law; nor change the nature of the rent, so as to make the person liable, unless there is fraud in preventing a distress. 76. Where by great length of time it is become impossible to know out of what particular lands an |