Chaplin v. Chaplin, infra. Rents may be granted in remainder. Salter v.Butler, Cont. Rem. 452. Ante, § 8. Wicks v. Peach, And to com❤ mence in futuro. a tenant in tail of lands marries, and dies without issue, whereby the estate tail is determined, for in that case it has been shewn that the wife shall be endowed. 16. It is however said by Lord Talbot, in the above case, that if a rent in esse be granted to A. in tail, remainder to B. in fee, and A. marries and dies without issue, his wife shall be endowed: or if a rent de novo be granted to A. in tail, remainder to B. in fee, and A. marries and dies without issue, his wife shall be endowed. For the estate tail in the rent shall be allowed to continue, as against the remainderman. 17. A widow will not however be entitled to dower out of a rent-charge, unless her husband had the legal estate in it. 18. A rent-charge may be granted in remainder after a limitation of it to a person for life; and if a rentcharge were granted to A. for the life of B., remainder over; though A. should die in the lifetime of B., so that the particular estate determined in interest, as to the perception of the profits; yet, inasmuch as the terretenant during the time held the land discharged, it was sufficient to support the remainder. 19. Mr. Fearne doubted whether this holding of the land discharged would have supported a contingent remainder but has said, that at this day there could be no room for a question of this nature; for since the statute 29 Cha. 2. and 14 Geo. 2. c. 20. the rent-charge is holden to continue in the personal representatives of the grantee, dying in the lifetime of the cestui que vie. 20. A grant of a rent-charge to A. and the heirs of his body, remainder to B. and his heirs, has been held to be good. For though it was objected that there could be no remainder of that whereof there was no reversion; yet it was held by Lord Holt that there may be a remainder of a rent de novo; for the intent of the party gives it, first a being for the whole, and then the lesser estates are carved out of it. 21. A rent-charge de novo may be granted so as to commence in futuro; for this is not like the case of lands, where the livery must carry the freehold immediately; and where the abeyance, for want of distinguishing in whom the freehold is, may be of prejudice to the rights of others. But the grant of a rent de novo is not attended with the like inconvenience; for no man can have a precedent right to a thing which is created by the grant itself. 22. A rent in esse, or already created, cannot how- Gilb. 60. ever be granted, to commence in futuro; because to such a rent there may be a precedent title; therefore, the grant is not good. For such freeholds being thus split and severed, do hide the person in whom the right is; by which the party that has right will not be able to discern against whom to bring his præcipe for recovering it. 23. A rent de novo may be limited so as to cease for a a time only, and afterwards to revive. Thus where a rent de novo was granted to a man and his heirs, with proviso that if the grantee died, his heir within age, then the rent should cease during the minority of the heir. The grantee died leaving his heir within age. The widow of the grantee brought a writ of dower against the terre-tenant; and it was held in parliament that she should have execution against the heir, when he came of age. 24. Rents are expressly mentioned in the statute 27 Hen. 8. c. 10.: they may therefore be conveyed to uses, and will be executed by the statute; which not only transfers the rent, but also all remedies and rights given for the recovery thereof. But that statute does not transfer collateral rights. 2 Mod. 138. 25. T. C. granted a rent charge of 2001. a year to Cooke v.Herle, trustees, in trust for Mary Cook, to hold to them, their heirs, executors, administrators, and assigns, in trust for the said Mary for life; with a clause of distress, and a covenant to pay the rent charge to the trustees for the use of the wife. The Court was of opinion that this Tit. 12. c. 1. Chaplin v. Cannot be de vested. C. 1. rent charge was executed by the statute of Uses, by the express words thereof, which execute such rents granted for life, upon trust; and transfers all rights and remedies incident thereto, together with the possession, to the cestui que use; so that though the power of distraining was limited to the trustees by the deed, yet by the statute which transferred that power to Mary Cook, she might distrain also. But the covenant, being collateral, could not be transferred. 26. The operation of the statute of Uses is the same in the case of rents as in that of lands: for it only transfers the legal estate in the rent to the first cestui que use; therefore a conveyance to A. and his heirs, to the use and intent that B. and his heirs may receive a rent out of the estate, gives B. the legal estate in the rent; and if it is afterwards declared that B. and his heirs are to stand seised of that rent to uses, the intended cestuis que use take only trust or equitable estates. 27. Lady Hanby conveyed divers lands, to the use and intent that certain trustees, in the deed named, should receive and enjoy a rent-charge of 30l. a year to them and their heirs; and then the said rent was to be to the use of Porter Chaplin in tail male, remainder over. Porter Chaplin died, leaving issue Sir John Chaplin, who married the plaintiff, and died without issue. One of the questions was, whether Lady Chaplin was dowable of this rent. Lord Talbot was of opinion, that Sir John Chaplin having only a trust estate in this rent, his widow was not dowable of it. 28. The mode in which seisin of a rent may be acquired has been already stated. Where a person has 5 Rep. 124. a. been once seised or possessed of a rent, he cannot afterwards be disseised or dispossessed of it; for a rent being merely a contingent right, collateral to, though issuing out of lands, it cannot be devested. And although a person entitled to a rent be not in the actual receipt and enjoyment of it, yet by nonuser only, he does not cease to have a vested estate or interest therein, so that he still continues to be in possession; therefore a rent, Hawk. P. C. being a mere creature of the law, is always considered to be in the possession of him whom the law adjudges to have a right to such possession. c. 64. § 45. 29. Thus Lord Coke says, a man cannot be disseised 1 Inst. 323 6. of a rent-service in gross, rent-charge, or rent-seck, by attornment or payment of the rent to a stranger, but at his election; the rule of law being, nemo redditum alterius, invito domino, percipere aut possidere potest. And Ten. 104. Lord Ch. B. Gilbert observes, that if A. is seised of a rent-charge, and the tenant of the land pays it to another, this does not devest A. of his right; because the wrongful payment of A.'s tenant cannot alter his right. It is therefore a payment in his own wrong, and the Lit. § 558.9. rent still remains in arrear to A. 30. It should however be observed, that Littleton $237, 240. states several cases of disseisin of rent: but these are only disseisins at the election of the party; for when he wrote, an assise was, in most cases, the only remedy for the recovery of a rent, which only lay where the party was disseised. But disseisins of incorporeal hereditaments are only at the election and choice of the party injured, who, for the sake of more easily trying the right, is pleased to suppose himself disseised; for as there can be no actual dispossession, he 10 Rep. 97 a. cannot be compulsively disseised of any incorporeal hereditament. or lost. 31. A particular estate in a rent, or in any other in- How forfeited. corporeal hereditament, is not forfeited by a grant of it i Inst. 251. in fee simple, by deed. As if tenant for life or years of a rent grants the same by deed to another in fee, this is no forfeiture of his estate; for nothing passes thereby but that which lawfully may pass. 32. A particular estate in a rent, or in any other in- Tit. 35. c. 12. corporeal hereditament, may however be forfeited by Ante, § 28. 32 Hen. 8. Eldridge v. Knott, Cowp. matter of record, of which an account will be given in a subsequent Title. 33. Although it is said that rents cannot be devested, yet avowries for rent are limited to fifty years, so that a quit rent or rent of assise may be lost by nonclaim. But it was held in a modern case that mere length of time, short of the period fixed by the statute of Limitations, and unaccompanied with any circumstances, was not of itself a sufficient ground to presume a release or extinguishment of a quit rent. |