Actions at law.

Rent service passes by grant of the reversion.



(f) Litt. ss. 228, 229, 572; Perk. s. 113. (g) Litt. ss. 561, 567, 568, 569;

Co. Litt. 309 a, n. (1). (h) Shep. Touch. 254.

The doctrine, that rent service, being incident to the reversion, always follows such reversion, formerly gave rise to the curious and unpleasant consequence of the rent being sometimes lost when the reversion was destroyed. For it is possible, under certain circumstances, that an estate may be destroyed and cease to exist. For instance, suppose A. to have been a tenant of lands for a term of years, and B. to have been his undertenant for a less term of years at a certain rent; this rent was an incident of A.'s reversion, that is, of the term of years belonging to A. If, then, A.'s term should by any means have been destroyed, the rent paid to him by B. would, as an incident of such term, have been destroyed also. Now, by the rules of law, a conveyance of the immediate fee simple to A. would at once have destroyed his term, - it not being possible that the term of years and the estate in fee simple should subsist together. In legal language the term of years would have been merged in the larger estate in fee simple; and the term being merged and gone, it followed as a necessary consequence, that all its incidents, of which B.'s rent was one, ceased also (n). This unpleasant result was some time since provided for and obviated with respect to leases surrendered in order to be renewed, - the owners of the new leases being invested with the same right to the rent of undertenants, and the same remedy for recovery thereof, as if the original leases had been kept on foot(o). But in all other cases the inconvenience continued, until a remedy was provided by the act to simplify the transfer of property (p). This act, however, was shortly after-Avards repealed by the act to amend the law of real property (q), which provides, in a more efficient though somewhat crabbed clause {r), that, when the reversion expectant on a lease, made either before or after the passing of the act, of any tenements or hereditaments of any tenure, shall after the 1st of October, 1845, be surrendered or merge, the estate, which shall for the time being confer, as against the tenant under the same lease, the next vested right to the same tenements or hereditaments, shall, to the extent and for the purpose of preserving such incidents to and obligations on the same reversion as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease.

Attornment abolished.

Rent formerly lost by destruction of the reversion.

(i) Stat. 4 & 5 Anne, c. 16, s. 9. (k) Sect. 10.

(l) Stat. 11 Geo. II. c. 19,s.11. (m) Ante, p. 174.

2. A remainder chiefly differs from a reversion in this, - that between the owner of the particular estate Merger.

Leases surrendered in order to be renewed.

Act to amend the law of real property.

A remainder.

(n) Webb v. Russell, 3 T. R.

(o) Stat. 4 Geo. II. c. 28, s. 6; 3 Prest. Conv. 138; Cousins v. Phillips, 3 Ilurlst. & Colt. 892; extended to crown lands by stat.

8 & 9 Vict. c. 99, s. 7.

(p) Stat. 7 & 8 Vict. c. 76, a. 12.

(q) Stat. 8 & 9 Vict. c. 106.

(r) Sert. 9.

and the owner of the remainder (called the remainderman) no tenure exists. They both derive their estates from the same source, the grant of the owner in fee simple; and one of them has no more right to be lord than the other. But as all estates must be holden of some person, - in the case of a grant of a particular estate with a remainder in fee simple, the particular tenant and the remainder-man both hold their estates of the same chief lord as their grantor held before (s). It consequently follows, that no rent service is incident to a remainder, as it usually is to a reversion; for rent service is an incident of tenure, and in this case no tenure exists. The other point of difference between a reversion and a remainder we have already noticed (t), namely, that a reversion arises necessarily from the grant of the particular estate, being simply that part of the estate of the grantor which remains undisposed of, but a remainder is always itself created by an express grant.

We have seen that the powers of alienation possessed by a tenant in fee simple enable him to make a lease for a term of years, or for life, or a gift in tail, as well as to grant an estate in fee simple. But these powers are not simply in the alternative, for he may exercise all these powers of alienation at one and the same moment; provided, of course, that his grantees come in one at a time, in some prescribed order, the one waiting for liberty to enter until the estate of the other is determined. In such a case the ordinary mode of conveyance is alone made use of; and until the passing of the act to amend the law of real property (u), if a feoffment should have been employed, there would have been no occasion for a deed to limit or mark out the estates of those who could not have immediate possession (v). The seisin would have been delivered to the first person who was to have possession (x); and if such person was to have been only a tenant for a term of years, such seisin would have immediately vested in the prescribed owner of the first estate of freehold, whose bailiff the tenant for years is accounted to be. From such first freeholder, on the determination of his estate, the seisin, by whatever means vested in him, will devolve on the other grantees of freehold estates in the order in which their estates are limited to come into possession. So long as a regular order is thus laid down, in which the possession of the lands may devolve, it matters not how many kinds of estates are granted, or on how many persons the same estate is bestowed. Thus a grant may be made at once to fifty different people separately for their lives. In such case the grantee for life who is first to have the possession is the particular tenant to whom, on a feoffment, seisin would be delivered, and all the rest are remaindermen; whilst the reversion in fee simple, expectant on the decease of them all, remains with the grantor. The second grantee for life has a remainder expectant on the decease of the first, and will be entitled to possession on the determination of the estate of the first, either by his decease, or in case of his forfeiture, or otherwise. The third grantee must wait till the estate both of the first and second shall have determined; and so of the rest. The mode in which such a set of estates would be marked out is as follows: - To A. for his life, and after his decease to B. for his life, and after his decease to C. for his life, and so on. This method of limitation is quite sufficient for the purpose, although it by no means expresses all that is meant. The estates of B. and C. and the rest are intended to be as immediately and effectually vested in them, as the estate of A.; so that if A. were to forfeit his estate, B. would have an immediate right to the possession; and so again C. would have a right to enter, whenever the estates both of A. and B. might determine. But, owing to the necessary infirmity of language, all this cannot be expressed in the limitations of every ordinary deed. The words " and after his decease" are, therefore, considered a sufficient expression of an intention to confer a vested remainder after an estate for life. In the case we have selected of numerous estates, every one given only for the life of each grantee, it is manifest that very many of the grantees can derive no benefit; and, should the first grantee survive all the others, and not forfeit his estate, not one of them will take anything. Nevertheless, each one of these grantees has an estate for life in remainder, immediately vested in him; and each of these remainders is capable of being transferred, both at law and in equity, by a deed of grant, in the same manner as a reversion. In the same way, a grant may be made of a term of years to one person, an estate for life to another, an estate in tail to a third, and last of all an estate in fee simple to a fourth; and these grantees may be entitled to possession in any prescribed order, except as to the grantee of the estate in fee simple, who must necessarily come last; for his estate, if not literally interminable, yet carries with it an interminable power of alienation, which would keep all the other grantees for ever out of possession. But the estate tail may come first into possession, then the estate for life, and then the term of years; or the order may be reversed, and the term of years come first, then the estate for life, then the estate tail, and lastly the estate in fee simple, which, as we have said, must wait for possession till all the others shall have been determined. When a remainder comes after an estate tail, it is liable to be barred by the tenant in tail, as we have already seen. This risk it must run. But, if any estate, be it ever so small, is always ready, from its commencement to its end, to come into possession the moment the prior estates, be they what they may, happen to determine, - it is then a vested remainder, and recognized in law as an estate grantable by deed(y). It would be an estate in possession, were it not that other estates have a prior claim; and their priority alone postpones, or perhaps may entirely prevent, possession being taken by the remainder-man. The gift is immediate; but the enjoyment must necessarily depend on the determination of the estates of those who have a prior right to the possession.