The first kind of incorporeal hereditament which we shall mention is somewhat of a mixed nature, being at one time incorporeal, at another not; and, for this reason, it is not usually classed with those hereditaments winch are essentially and entirely of an incorporeal kind. But as this hereditament partakes, during its existence, very strongly of the nature and attributes of other incorporeal hereditaments, particularly in its always permitting, and generally requiring, a deed of grant for its transfer, - it is here classed with such hereditaments. It is called, according to the mode of its creation, a reversion or a vested remainder.
If a tenant in fee simple should grant to another person a lease for a term of years, or for life, or even if he should grant an estate tail, it is evident that he will not thereby dispose of all his interest; for in each case, his grantee has a less estate than himself. Accordingly, on the expiration of the term of years, or on the decease of the tenant for life, or on the decease of the donee in tail without having barred his estate tail and without issue, the remaining interest of the tenant in fee will revert to himself or his heirs, and he or his heir will again become tenant in fee simple in possession. The smaller estate which he has so granted is called, during its continuance, the particular estate, being only a part, or particula, of the estate in fee (a).
(a) 2 Black. Com. 165.
And, during the continuance of such particular estate, the interest of the tenant in fee simple, which still remains undisposed of - that is, his present estate, in virtue of which he is to have again the possession at some future time - is called his reversion (b).
If at the same time with the grant of the particular estate he should also dispose of this remaining interest or reversion, or any part thereof, to some other person, it then changes its name, and is termed, not a reversion, but a remainder (c). Thus, if a grant be made by A., a tenant in fee simple, to B. for life, and after his decease to C. and his heirs, the whole fee simple of A. will be disposed of, and C.'s interest will be termed a remainder, expectant on the decease of B. A remainder, therefore, always has its origin in express grant: a reversion merely arises incidentally, in consequence of the grant of the particular estate. It is created simply by the law, whilst a remainder springs from the act of the parties (d).
1. And, first, of a reversion. If the tenant in fee simple should have made a lease merely for a term of years, his reversion is looked on, in law, precisely as a continuance of his old estate, with respect to himself and his heirs, and to all other persons but the tenant for years. The owner of the fee simple is regarded as having simply placed a bailiff on his property (e); and the consequence is, that, subject to the lease, the owner's rights of alienation remain unimpaired, and may be exercised in the same manner as before. The feudal possession or seisin has not been parted with. And a conveyance of the reversion may, therefore, be made by a feoffment, with livery of seisin, made with the consent of the tenant for years (f). But, if this mode of transfer should not be thought eligible, a grant by deed will be equally efficacious. For the estate of the grantor is strictly incorporeal, the tenant for years having the actual possession of the lands: so long, therefore, as such actual possession continues, the estate in fee simple is strictly an incorporeal reversion, which, together with the seisin or feudal possession, may be conveyed by deed of grant (g). But, if the tenant in fee simple should have made a lease for life, he must have parted with his seisin to the tenant for life; for, an estate for life is an estate of freehold, and such tenant for life will, therefore, during his life, continue to be the freeholder, or holder of the feudal seisin (h). No feoffment can consequently be made by the tenant in fee simple; for he has no seisin of which to make livery. His reversion is but a fragment of his old estate, and remains purely incorporeal, until, by the dropping of the life of the grantee, it shall again become an estate in possession. Till then, that is, so long as it remains a reversion expectant on an estate of freehold, it can only be conveyed, like all other incorporeal hereditaments when apart from what is corporeal, by a deed of grant (i).
A remainder arises from ex-press grant.
A reversion on a lease for years may be conveyed by feoffment,
(b) Co. Litt. 22 b, 142 b.
(c) Litt. ss. 215, 217.
(d ) 2 Black. Com. 163.
(e) Watk. Descents, 108 (113, 4th ed.)
We have before mentioned (k), that, in the case of a lease for life or years, a tenure is created between the parties, the lessee becoming tenant to the lessor. To this tenure are usually incident two things, fealty (l) and rent. The oath of fealty is now never exacted; but the rent, which may be reserved, is of practical or by deed of grant.
A reversion on a lease for life must be conveyed by deed of grant.
Fealty and rent.
(f) Co. Litt. 48 b, n. (8).
(g) Perkins, s. 221; Doe d. Were v. Cole, 7 Barn. & Cress. 243, 248; ante, p. 174.
(h) Watt Descents, 109 (114,
4th ed.); ante, p. 187. (i) Shep. Touch. 230. (k) Ante, p. 113. (l) Ante, pp. 120, 121.
importance. This rent is called in law rent service (m) in order to distinguish it from other kinds of rent, to be spoken of hereafter, which have nothing to do with the services anciently rendered by a tenant to his lord. It consists, usually, but not necessarily, of money; for, it may be rendered in corn, or in any tiling else. Thus, an annual rent of one peppercorn is sometimes reserved to be paid, when demanded, in cases where it is wished that lands should be holden rent free, and yet that the landlord should be able at any time to obtain from his tenant an acknowledgment of his tenancy. To the reservation of a rent service, a deed was formerly not absolutely necessary (n). For, although the rent is an incorporeal hereditament, yet the law considered that the same ceremony, by which the nature and duration of the estate were fixed and evidenced, was sufficient also to ascertain the rent to be paid for it. But, by the act to amend the law of real property (0), it is provided, that a lease, required by law to be in writing, of any tenements or hereditaments shall be void at law, unless made by deed. In every case, therefore, where the Statute of Frauds (p) has required leases to be in writing, they must now be made by deed. But, according to the exception in that statute (q), where the lease does not exceed three years from the making, a rent of two-thirds of the full improved value, or more, may still be reserved by parol merely. Rent service, when created, is considered to be issuing out of every part of the land in respect of which it is paid (r): one part of the land is as much subject to it as another. For the recovery of rent service, the well known remedy is by distress and sale of the goods of the tenant, or any other person, found on any part of the premises. This remedy for the recovery of rent service belongs to the landlord of common right, without any express agreement (s). In modern times it has been extended and facilitated by various acts of parliament (t).