a heirs. And yet it is holden (m) in our books, that a (m) 5 E. 3. 27. 28. (Ante, 164 a.) man may make a feoffment in fee, reserving rent of (a0 Rep. 106. Hob. forty shillings to the feoffor for term of his life, and *af-130.) ter his decease, a pound of cumin to his heirs, that this is good. *214 a. If a man make a seoffment in fee, reserving a rent to (Post, 47 a.) (n) Lib. 5. fol. 111. him or his heirs, it is good (n) to him for term of his Mallorie's case. life, and void to his heir. BUT if two joint-tenants make a lease by deed indented, reserving to one of them a certain yearly rent, this is good enough to him to whom the rent is reserved, for that he is privy to the lease, and not a stranger to the lease, &c. LITTLETON. [Sect. 346. 21.] (84)* 214 a. 5 E. 4. 4 a. 27 H. 8. This case being by deed indented, (I) is evident, and it hath been touched before (12.); but if that two joint-16. Vid. sect. 58. tenants, without a deed indented, make a lease for life, (Post, 318 a. 47 a. reserving a rent to one of them, it shall enure to them for William is not in as heir, and therefore he cannot have the rent. Huntley's case, Palm. 485." Lord (1) The principle which gave rise to this rule is, that rent is considered as a retribution for the land, and is therefore payable to those who would otherwise have had the land. It is to be observed that remainder-meri in a settlement, being, at first view, neither feoffors, donors, lessors, nor the heirs of feoffors, donors, or lessors, there seems to have been, for some time after the statute of uses, a doubt, whether the rent of leases made by virtue of powers contained in settlements, could be reserved to them. In Chudleigh's case, 1 Rep. 139. it is positively said, that if a feofiment in fee be made to the use of one for life, remainder to another in tail, with remainder over, with a power to the tenant for life to make leases, referring the rent to the reversioners, and the tenant for life accordingly make leases, neither his heirs nor any of the remainder-men shall have the rent. But in Harcourt v. Pole, 1 Anders. 273. it was adjudged, that the remainder-men might distrain in these cases. And in Sir Thomas Jones, 36. the dictum in Chudleigh's case is denied to be law. The determination in Harcourt v. Pole, will appear incontrovertibly right, if we consider that both the lessees and remainder-men derive their estate out of the reversion, or original inheritance of the settler; and therefore the law, to use Sir Edward Coke's expression in Whitlock's case, 8 Rep. 71. will distribute the rent to every one to whom any limifation of the use is made. - [Butler. Note, 116.] (12) Ante, 192 a. vol. 1. p. 734. As to the reservation of rent in case of leases made by virtue of powers in marriage settlements, sre 47 a, post. chap. 83. Of Leases. Ed. VOL. II. N ( (Ante, 192 a. 6 Rep. 15 a. Post, 42 a. 45. a. both, in respect of the joint reversion. And so it is of a surrender to one of them, it shall enure to them both. If two joint tenants, the one for life, and the other in 53 b. Ante, 193 a.) fee, join in a lease for life, or a gift in tail, reserving a rent, the rent shall enure to them both; for, if the particular estate determine, they shall be joint tenants again in possession. But if tenant for life, and he in the reversion, join in a lease for life, or a gift in tail by deed, reserving a rent, this shall enure to the tenant for life only, during his life, and after to him in the reversion, for every one grants that which he may lawfully grant; and if, at the common law, they had made a feoffment in fee generally, the feoffee should have holden of the tenant for life during his life, and after of him in rever Vid. sect. 58. (0) Mich. 36 & 37 Eli.sion: and so it was holden (0) in the king's bench. LITTLETΟΝ. [Sect.347.214a.] THE second thing (122) is, that no entry nor reand not by a stranger entry (which is all one) (123), may be reserved or given to any person, but only to the feoffor, or to the donor, or to the lessor, or to their heirs; and such (124) re-entry cannot be given to any other person (K2). For if a man letteth (25) land to another for term of life by indenture, rendering to the lessor and to his heirs a certain rent, and for default of payment a re-entry, &c. if afterward the lessor by a deed granteth the reversion of the land to another in fee, and the tenant for term of life attorn, &c. *if the rent be after behind, the grantee of the reversion may distrain for the rent, because that the rent is incident to the reversion; but he may not enter into the land and (85)* (122) est not in Roh. but in L. and M. (123) ne added in L. and M. and Roh. (124) re-enter-rent in L. and M. and Roh. (125) certeine added in L. and M. and Roh. (K2) A right of entry always supposes an estate; and if a grant is made to a man reserving rent, and, in default of payment, a right of entry is granted to a stranger, it is void. Smith v. Packhurst, 3 Atk. 134.[Ed.] by assignees in deed, oust the tenant, as the lessor might have done, or his heirs, if the reversion had been continued in them, &c. nor (at common law) And in this case the entry is taken away for ever; for the grantee of the reversion cannot enter, causâ quâ supra. And the lessor nor his heirs cannot enter; for if the lessor might enter, then he ought to be (126) in his former state, &c. and this may not be, because he hath aliened from him the reversion. 214 a. Here Littleton reciteth one of the maxims of the common law: and the reason hereof is, for avoiding of main- (1) Rol, Abr. 47.) tenance, suppression of right, and stirring up of suits: and therefore nothing in action, entry, or re-entry, can be granted over; for so, under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the common law forbiddeth, as men to grant before they be in possession, &c." 214 b. "To the feoffor, or to the donor, &c. or to their heirs, Here is to be observed a diversity between a re- Pl. Com. 313, 314. servation of a rent and a re-entry; for (as it hath been in Scolasticae's case, (Hob. 130.) said) a rent cannot be reserved to the heir of the feoffor, but the heir may take advantage of a condition, which to me. ALSO, if lord and tenant be, and the tenant make a lease for term of life, rendering to the lessor and his heirs such an annual rent, and for default of payment a re-entry, &c. if after the lessor dieth without heir during the life of the tenant for life, whereby the reversion cometh to the lord by way of escheat, and after the rent of the tenant for life is behind, the lord (128) en-a in L. and M. and Roh. (86)* 215 b. (F. N. B. 144 b.) 19 E. 3. Resceit 14. (Ante, 1 b. 47 a.) 214 b. sors of a bishop, &c.; may distrain the tenant for the rent *behind; but he may not enter into the land by force of the condition, &c. because that he is not heir to the (127) lessor, &c. Note, here it apeareth, that the lord by escheat shall distrain for the rent, and yet the rent was reserved to the lessor and his heirs; but both assignees in deed and assignees in law shall have the rent, because the rent being reserved of inheritance to him and his heirs, is incident to the reversion, and goeth with the same. But if the rent were reserved to him and his assigns, and the lessor assigned over the reversion, and dieth, the assignee shall not have the rent after his decease, because the rent determined by his death, for that it was not reserved to him, his heirs and assigns. "But he may not enter into the land by force of the condition, &c." Hereby it appeareth, that at the common law, neither assigns in deed nor assigns in law could have taken the benefit of either entry or re-entry, by force of the condition. The guardian in chivalry (p) or in socage, shall, in the right of the heir, take benefit of a condition by entry or re-entry, by the common law, and so it is here implied. Our author (sect. 347.) speaketh of natural persons for Secus as to the succes- an example; for if a bishop, archdeacon, parson, prebend, or any other body politic or corporate, ecclesiastical or temporal, make a lease, &c. upon condition, his successor may enter for the condition broken, for they are privy in right. or executors, in respect of leasehold estates; And so if a man have a lease for years, and demise or grant the same upon condition, &c. and die, his executors or administrators shall enter for the condition broken, for they are privy in right, and represent the person of the dead. (127) lessor-feoffor, L. and M. and Roh. 215 a (q) If cestuy que use had made a lease for years, &c. upon condition, the feoffees should not enter for the con- (9) 27 H.8. 1. dition broken, for they are privy in estate, but not privy in blood. case of limitations, (10 Rep, 42.) (87)* 411. Post, "For default of payment a re-entry, &c. Hereupon 214 b. is to be collected divers diversities. First, between a or as to a stranger, in condition that requireth a re-entry, and a limitation that ipso facto determineth the estate without any entry. Of this first sort, no stranger, as Littleton saith, shall (Plo. 242 a. 1 Rol. take any advantage as hath been said. But of limitations 379 a.) it is otherwise. As if a man make a lease quousque, that is, until I. S. comes from Rome, the lessor grant the reversion over to a stranger, I. S. comes from Rome, the grantee shall take advantage of it and enter, because the estate by the express limitation was determined (L2). So it is, if a man make a lease to a woman quamdiu Register 246. Pl. casta vixerit, or if a man make a lease for life to a wi-Com. 27. 34 Ε. 3. (L2) Between a condition and a limitation there is this difference :A limitation marks the utmost time of continuance; a condition marks some event, which, if it happens in the course of that time, is to defeat the estate. Thus A. gives lands to B. for twenty years. In this case the estate may endure to the end of that period, so that it may be fully completed. The space of twenty years is the period for which the estate is to continue; and the words, appointing this to be the time of continuance, are called the limitation, from their ascertaining the boundary of the estate. But if a clause introduced by, and concluding in words of condition, is added, that if somewhat shall be done, or omitted by either of the parties, or by any other person in the meantime, that then the term of twenty years shall cease and be void, this is a clause of condition; and on the rise of the event on which the term is to cease, or be avoided, and a pursuit of title by entry or claim, the condition will put an end to the estate of the person to whom the limitation is made, and of all persons claiming under him, though the period to which it was extended in its limitation, is not yet arrived. Prest. Est. 22. A condition, properly so called, annexed to an estate, differs from what is termed a conditional limitation in this, that it is the proper effect of a condition to give title, by the breach of it, to the grantor, or those claiming from him the reversion in the lands; a conditional limitation limits the estate over to a stranger: and in the case of a conditional limitation the estate expires and determines of itself, without any act, as entry or claim, to be done or made by him who has the expectant interest: whereas in the case of a condition properly so called, advantage must be taken of the breach of it, by the activity of the grantor, his heirs, or assigns. 2 Woodd. 143, 4. 2 Bl. Com. 155. Fearn. Cont. Rem. 101. 400. The loctrine of remainders will be considered in the next chapter.-[Ed.] Formedon 68. |