(13), and they are tenants within the words of Littleton (G). (412)* (n) It appeareth by Littleton, that reservando is an In respect of the words apt word of reserving a rent, and so is reddendo, solven-by which it may be do, faciendo, inveniendo, dummodo, and the like (11). (n) 40 Ε. 3. 47. made. 8E 3.67. 21 E. 4. 62. 3. H. 6. 45. *(0) And note a diversity between an exception 31 Ass. p. 30. 3 Ass. (which is ever of part of the thing granted and of a 9. 26 Ass, 66. 32 Ε. 3. (13) "And after the particular estate determined, distress may be made for all arrears, 10 . 4.3." Hal. MSS.-[Hargr. n. 6. 47 a. (288).] (14) "Lease for years by indenture, and lessee covenants to pay 51. a year; this is a reservation. Dy. 276. H. 6 Car. B. K. Crook, n. 1. Drake and Munday. But if there be reddendo rent, and the lessee covenants to pay two capons, there it seems to be only covenant. M. 40, 41 Eliz. Bruerton's case." Hal. MSS. See Cro. Cha. 207. and Hardr 326.-Hargr. n. 7. 47 a. (289).] [So where, by articles of agreement indented between A. and B. it was covenanted and agreed, that A. did let Blackacre to B. for five years from Michaelmas following, provided always, that B. should pay at Michaelmas and Lady-day 101. by even portions yearly; this proviso was held to be a good reservation of the rent; for as the words amounted to an immediate demise of the lands, so the rent, Br. 291.8 E. 4. 8. 10 El, Dy. 276. Pl. which is but a retribution for the Com. en Browning & land, ought to be paid immediately, Beeston's case, fol. and it could not be construed to be 131, 132, &c. a sum in gross, because by the Diversity between a re words of the articles (which being servation and an exindented are the words of both ception. parties) it was to be paid yearly. (0) 50 E. 3.12. Harrington v. Wise, Cro. Eliz. 486. 13 ss. 9.38 E 3.10. Moor, 459. But, if a man makes a 21 E. 3. 4. 34 Ass. 11. lease of lands, except 12d. or præter 29 E. 3. 14. 3 H.6. 12d.rent, these words do not amount 45 10 H. 6. 8. 41. to a reservation, because they 33 H. 6. 1. 35 Н. 6. are only proper to reserve to the 34. 17 Ass. 14 H. 8. 1. lessor part of something in being, 44 E. 3. 43. Pl. Com, which would otherwise pass by the 361. lease. Perk. sect. 639. So it is if a man makes a lease, salvo or saving 20s rent, this is not a good reservation, because there can be no saving of any thing not in being; consequently a rent-service, being a return of something not in the lessor in lieu of the land given, cannot be reserved by words, which, in their most extended signification, can only preserve something already in esse. 2 Roll. Abr. 449. 6 Bac. Abr. 12. tit. Rents, (D).] [Ed.] (G) Although a reversion or remainder be incorporeal, and can pass only by grant, yet a rent reserved upon a grant of them is good; for, though the grantor has no remedy for the rent reserved during the con. tinuance of the particular estate, yet since it relates to lands which were originally granted to make profit of, the judges have gone as far as they could to pursue the intention of such original donations, and therefore have admitted such reservations to be good immediately: which con struction is the more reasonable, because in this case there is a remedy by distress for all the arrears, when the reversion executes by the determination of the particular estate, whereas there is no possibility of such remedy in the case of commons, fairs, &c. See Gilb, on Rents, 24. So it is if a man grants a future interest in land, as if it be a lease for years, to commence five years after the making of the lease, the lessor may reserve a rent immediately, because this is a good contract to bind the lessee, and to ground an action of debt; and the lessor may likewise have' Von. 11. 3 P thing in esse, for which exceptis, salvo, prater, and the like, be apt words; and a reservation which is always of a thing not in esse, but newly created or reserved out of Bract. lib. 2. fol. the land or tenement demised. (p) Poterit enim quis rem dare et partem rei retinere, vel partem de pertinentiis, et illa pars quam retinet sem percum eo est ef semper fuit. (g) But out of a general a part may be 32 b. & fol. 249. (9)9 El. Dy. 264. 228.3.8 25.3. 56, excepted, as out of a manor, an acre, ez verbo generali 5 Ε. 3. 66.34 Am. 1. aliquid excipitur, and not a part of a certainty, as out 143 a of twenty acres, one. Reserve cometh of the Latin word reservo, that is, to provide for store; as when a man departeth with his land, he reserveth or provideth for himself a rent for his own livelihood. And sometime it hath the force of sa (v) 2 E. 4. 48. 26 Ans. ring or excepting. So as (r) sometime it serveth to pl. 66. (Ante, 47 a.) reserve a new thing, viz. a rent, and (81) sometime to (3) 35 H. 6.34. except part of the thing in esse that is granted (15). 47 a. Reservation of rent must be made to the lessor and not to a stranger. Reservation of rent to one joint-tenant, on a joint lease, enures to both: unless by deed indented. (1) 5 Ε. 4. 4. 14 E. 3. Bre. 282. 8 Co. 70, 71. It is further to be observed, that the lessor cannot reserve to any other but himself, for Littleton saith, reserve to himself (H). (t) If two joint-tenants be, and (15) In a preceding note Lord Coke asserts, that reservation is always of a thing newly created out of the land demised. Ante, 47 a (supra.) But here he is more qualified in expression, and allows the word to be sometimes used to except part of the thing granted. How ever, the former is the more techni cal use of the word; exception being a more proper term than reservation for the latter purpose. The learning on this subject will be found under the title Reservation in Viner's Abridgment.-[Hargr.n. 1. 145a. (232).] his remedy by distress for the arrears, when the lessee comes into possession. 2 Rol. Abr. 406, 407 Plowd. 423. See further as to the things out of which a rent may be reserved, ante, 142 a. vol. 1. p. 441. (Ed.) (H) For the reason of this rule, see ante, 143. vol. 1. p. 442. n. (C). II, however, a person makes a lease to commence after his death, reserving rent to his heirs; this will be deemed a good rent-service arising in the heir, not by way of purchase, but as incident to the reversion descending to the heir; and, therefore, may be released by the ancestor during his life, which it could not be, if it was a new purchase in the heir. 2 Rol. Abr. 447. pl. 2. 2 Saund. 370. But where a father and his son and heir apparent demised land for years, to begin after the death of the father, rendering rent to the son by his proper name; the father died; the lessee entered; and, the rent being behind, the son distrained: it was resolved, that this reservation of rent was utterly void: for, although the son was heir to the father, yet he could not have the rent as heir to his father, bes they make a *lease for years by parol, or deed poll, reserving a rent to one of them, this shall enure to them both; but if it be so reserved by deed indented, it shall enure to him alone by way of conclusion (1). (413)* where the lessor dies (u) Littleton here is putting of a case, and not making Diversity between a rea lease, for then he would not reserve the rent to him, servation of rent to the lessor, without saying, but to him and his heirs, for otherwise the rent shall de- " and his heirs" and a termine by his death, if he die within term (16). (w) reservation generally, But if he reserve a rent generally without showing to during the term. whom it shall go, it shall go to his heirs. If he reserve (u) Vid. sect. 214, 215, 216, &c. 10 E. 4. a rent to him and his assigns, yet the rent shall deter-18. 11 E. 3. A89, 86. mine by his death, because the reservation is good but 25. 30 H. 8. Dy. 45. during his life. So it is, if he reserve a rent to him and (10) Mich. 5. Ja. in repl. inter Wootton & his executors, it shall end by his death, because the heir Ed Edwin, Bank le Roy. hath the reversion, and the rent was incident to the re- Hil. 33 El. Rot. 1431. in Bank le Roy, inter version (17). So, if a man warrant land to B. and his Richmond & Butcher. (Ante, 215 b. 2 Rol. (16) "Rent, reserved to him and his assigns during the term, or to him his executors and assigns during the term, determines by the lessor's death. T. 2 Car. B. R. Noy. n. 412. 12 Co. n. 20. and Hil. 32 Eliz. Richmond's case." Hal. MSS. See Noy. 96. 12 Co. 35. and Cro. Eliz. 217.-But notwithstanding the cases here cited by Lord Hale, it was adjudged, whilst he was chief justice of the king's bench, that the words during the term are of themselves sufficient to 27 Η. 8. 19. 21 H. 7. carry the rent to the heir, if the Abr. 450. 12 Co. 35. (17) "Rendering rent to him, cause the rent was not reserved to the heir; and he could not have it by the reservation on the lease, because he was a stranger to the land, and had nothing in it at the time of making the lease. For heir is the only word of privity in law requisite to the reservation of rents; the heir being, in representation in point of taking by inheritance, eadem persona cum antecessore. Oates v. Frith, Hob. 130. Note, that a man may reserve a rent to himself for his life, and a different rent to his heir. Ante, 213 b. 214 a. p. 82, 83. See further as to the reservation of rents, infra, n. (K).-[Ed.] (I) The reason of the difference is this; where the lease is by deedpoll, or parol, the rent shall follow the reversion, which is jointly in both lessors; and the rather, because the rent being something in retribution for the land given, the joint-tenant to whom it is reserved ought to be seised of it in the same manner as he was of the land demised, which was equally for the benefit of his companion as himself; but where the lease is by deed indented, they are estopped to claim the rent in any other manner than as it is reserved by the deed, because the indenture is the deed of each party; and no man shall be allowed to recede from, or vary his own solemn act. 2 Rol. Abr. 447. Vent. 161. 6 Bac- Abr. 20.-[Ed.] assigns, the assignee must vouch during the life of B., for the warranty continues but only during the life of B., for the warranty is but for life, for want of words of inheritance. But if the warranty be to B., his heirs and assigns, so as he hath an inheritance therein, then his assignee shalt vouch after his decease. So if the rent be reserved to the lessor, his heirs and assigns, so as it be incident to the inheritance, then shall all the assignees of the reversion enjoy the same (к). (K) In Sacheverell v. Froggatt, 1 Vent. 161, Lord Hale lays down some useful rules respecting the reservation of the rent. He said, that where the reservation of the rent is general, the law directs according to the intent and the nature of the thing demised: As if tenant in tail makes a lease for years, rendering rent to him and his heirs, the rent shall go to the heir in tail along with the reversion: for the law uses all industry imaginable to conform the reservation to the estate. So where tenant for life, the remainder over to several by limitation of uses, with power to make leases, demises, reserving rent to him, his heirs and assigns, it shall be adjudged to him in remainder. Whitlock's case, 8 Co 70 b. So if lessee for 100 years makes a lease for 50 years, rendering rent to him and his heirs during the term, it shall go to the executor. So where a copyholder by license leases, rendering rent to him and his wife during their lives, and to his heirs, where by the custom the wife has her free-bench, the wife shall have the rent as incident to the reversion, though not party to the lease; for the reversion, if possible, will attract the rent to it. So where the words are general, they will be expanded according to law; and therefore if tenant in tail to him and the heirs male of the body of his father, lets the land, rendering rent to him, his heirs and assigns, the rent shall go to the heir male of the body of his father, though he be not heir to the lessor; for it is incident to the reversion. Cother v. Merrick, Hardr. 91. 95. 2 Saund. 371. ed. Wms. But where the reservation is particular, as to the lessor, without going further, or to the lessor and his assigns, there the rent shall determine with his death, though the lease, upon which it is reserved, be still continuing: for the reservation is good only during his life, and it shall never be carried further than the period of time the lessor himself has fixed it: and therefore, in this case, the agreement of the parties prevents the construction of law. Hardr. 91. So where the reservation is special, and to improper persons, there the law follows the words. And therefore if rent is reserved to the lessor, and his executors, he having the freehold, it will determine at his death; because the reversion, to which the rent is incident, descends to the heir. So if a lease be made of a term for years, reserving rent to the lessor and his heirs, such rent will determine by the death of the lessor: for the heir cannot have it, as he could not succeed to the estate, being only a chattel; and the executor cannot have it, there being no words to carry it to him. 1 Ventr. 161. But where a man, seised of land in fee, made a lease for years, reserving rent to him and his assigns during the term, it was adjudged, that this reservation should not determine by the death of the lessor, but the rent should go to this heir; for though there was no mention of the heirs in the reservation, yet there were words which evidently declared the intention of the lessor, that the payment of the rent should be of equal duration with the lease; the lessor having expressly provided, that it should be paid during the term; and consequently the rent must be carried over to *" Yearly rent." So it is, if the rent be reserved (414)* every two or three or more years (18). Of rents Little. The rent may be reserved every year, or ton doth excellently treat in his Chapter of Rents, and every two or three therefore in this place thus much shall suffice. years. (415)* *" But in such case it behoveth, that the lessor be seised in the same tenements at the time of his lease; for it is a good plea for the lessee (19) to say, that the Where the lessor is not seised of the land, at lessor had nothing in the tenements at the time of the the time of the demise, the lessee may plead lease." And the reason of this is, for that in every con- nil habuit in tenementract there must be quid pro quo, for contractus est tis; quasi actus contra actum; and therefore if the lessor hath nothing in the land, the lessee hath not quid pro quo, nor any thing for which he should pay any rent. And in that case he may also plead, that the lessor non or non dimisit, &c. : dimisit, and give in evidence the other matter (20). (18) See further as to reservation of rent, Vin. Abr. tit Reservation, and Gilb. Treat. on Rents. [Hargr. n. 10. 47a] (19) "Nota, this diversity. In pleading a lease one ought to say, that the lessor was seised and de mised; but in count in debt for rent it is good without alleging (20) "18 Ε. 3. 16. Brief, 747. the heir, who came into the inheritance after the death of the lessor, and would have succeeded in the possession of the estate, if no lease had been made: and, if the lessor had assigned over his reversion, the assignee should have had the rent as incident to it; because the rent was to continue during the term, and must therefore follow the reversion, since the lessor made no particular disposition of it, separate from the reversion. Sury v. Brown, Latch. 99, 100. Ventr. 163. So if a lease be made for years, reserving rent during the term to the lessor his executors administrators and assigns, the rent goes to the heir: because the reservation being to the lessor and his assigns during the term, the words executors and administrators are void, and, the lessor having the inheritance, such express words evidently discover the intent of the contract, and that the lessee agreed and bound himself to the payment of the rent during the continuance of the demise. Sacheverell v. Froggatt, 2 Saund. 367. 2 Lev. 13. Raym. 213. Ventr. 161. And for the same reason, if a termor for fifty years leases for twenty-five years, reserving rent to him and his heirs during the term, the executors shall have the rent after the death of the lessor. Ventr. 162. Note, that where no reversion is left in the lessor, and the rent is reserved to his executors, administrators, and assigns, it will go to them, and not to the heir. Jenison v. Lexington, 1 P. Wms. 555. Et vid. ante, vol. 1. p. 441. n. (B). Where tenant for life and the person in reversion join in a lease for life, or gift in tail, by deed, reserving a rent, this shall enure to the tenant for life only, during his life, and after his death to the person in reversion. Ante, 214 a. p. 84. See further on the subject of this note, 2 Prest. Conv. 184-189.-[Ed.] F |