Appurtenant incorporeal hereditaments arise by grant or prescription.
Appurtenant rights of common and of way.
(i) Co. Litt. 121 b.
(k) Harding v. Wilson, 2 B. & Cres. 96; Barlow v. Rhodes, 1 Cro. & M. 439. Sec also James v. Plant, 4 Adol. & Ellis, 749; Hinchliffe v. Earl of Kinnoul, 5 New Cases, 1; Pheysey v. Vicary, 16 Mee. & Wels. 484; Ackroyd v. Smith, 10 C. B. 164; worthing-ton v. Gimson, Q. B., 6 Jur., N. S. 1053; 2 Ellis & Ellis, 618; Baird v. Fortune, II. L., I0 W. R. 2; 7 Jur., N. S. 926; Wardle v. Brochlehurst, 1 Ellis & Ellis, 1058. (l) Ante, p. 183.
3. Such incorporeal hereditaments as stand separate and alone arc generally distinguished from those -which are appendant or appurtenant, by the appellation in gross. Of these the first we may mention is a seignory in gross, which is a seignory that has been severed from the demesne lands of the manor, to -which it was anciently appendant (m). It has now become quite unconnected with anything corporeal, and, existing as a separate subject of transfer, it must be conveyed by deed of grant.
The next kind of separate incorporeal hereditament is a rent seek, (redditus siccus,) a dry or barren rent, so called, because no distress could formerly be made for it (n). This kind of rent affords a good example of the antipathy of the ancient law to any inroad on the then prevailing system of tenures. If a landlord granted his seignory, or his reversion, the rent service, which was incident to it, passed at the same time. But if he. should have attempted to convey his rent, independently of the seignory or reversion, to which it was incident, the grant would have been effectual to deprive himself of the rent, but not to enable his grantee to distrain for it (o). It would have been a rent seek. Kent seek also occasionally arose from grants being made of rent charges, to be hereafter explained, without any clause of distress (p). But now, by an act of Geo. II. (q) a remedy by distress is given for rent seek, in the same manner as for rent reserved upon lease.
Another important kind of separate incorporeal hereditament is a rent charge, which arises on a grant by one person to another, of an annual sum of money, payable out of certain lands in which the grantor may have any estate. The rent charge cannot, of course, continue longer than the estate of the grantor; hut, supposing the grantor to be seised in fee simple, he may make a grant of a rent charge for any estate he pleases, giving to the grantee a rent charge for a term of years, or for his life, or in tail, or in fee simple (r). For this purpose a deed is absolutely necessary; for a rent charge, being a separate incorporeal hereditament, cannot, according to the general rule, be created or transferred in any other way (s), unless indeed it be given by will. The creation of a rent charge or annuity, for any life or lives, or for any term of years or greater estate determinable on any life or lives, was also, until recently, required, under certain circumstances, to be attended with the inrolment, in the Court of Chancery, of a memorial of certain particulars. These annuities were frequently granted by needy persons to money lenders, in consideration of the payment of a sum of money, for which the annuity or rent charge served the purpose of an exorbitant rate of interest. In order, therefore, to check these proceedings by giving them publicity, it was provided that, as to all such annuities, granted for pecuniary consideration or money's worth (t), (unless secured on lands of equal or greater annual value than the annuity, and of which the grantor was seised in fee simple, or fee tail in possession,) a memorial stating the date of the instrument, the names of the parties and witnesses, the persons for whose lives the annuity was granted, the person by whom the same was to be beneficially received, the pecuniary consideration for granting the same, and the annual sum to be paid, should, within thirty days after the execution of the deed, be inrolled in the Court of Chancery; otherwise the same should be null and void to all intents and purposes (u) But as these annuities were only granted for the sake of evading the Usury Laws, the same statute which has repealed those laws (x) has also repealed the statutes by which memorials of such annuities were required to be inrolled. A subsequent statute, however, provides, that any annuity or rent charge granted after the 26th of April, 1855, the date of the passing of the act, otherwise than by marriage settlement or will, for a life or lives, or for any estate determinable on a life or lives, shall not affect any lands, tenements or hereditaments, as to purchasers, mortgagees, or creditors, until the particulars mentioned in the act are registered in the Court of Common Pleas, where they are entered in alphabetical order by the name of the person whose estate is intended to be affected (y). A search for annuities is accordingly made in this registry on every purchase of lands, in addition to the searches for judgments, crown debts, executions and lis pendens (z).
A seignory in gross.
A rent charge.
(m) 1 Scriv. Cop. 5.
(n) Litt. s. 218.
(o) Litt. ss. 225, 226, 227, 228, 572.
(p) Litt. ss. 217, 218.
(q) Stat. 4 Geo. II. c. 28, s. 5.
A deed required.
Inrolment of memorial of annuities for lives granted for pecuniary consideration.
(r) Litt. ss. 217, 218. (s) Litt. ubi sup. (t) Tetley v. Tetley, 4 Bing. 214; Mestayer v. Biggs, 1 Cro.
Mee. & Rose. 110; Few v. Backhouse, 8 Ad. & Ell. 789; S.C.I. Per. Per. & Dav. 34; Doe d. Church v. Pontifex, 9 C. B. 229.
In settlements where rent charges are often given by way of pin-money and jointure, they are usually created under a provision for the purpose contained in the Statute of Uses (a). The statute directs that, where any persons shall stand seised of any lands, tenements, or hereditaments, in fee simple or otherwise, to the use and intent that some other person or persons shall have yearly to them and their heirs, or to them and their assigns, for term of life, or years, or some other special time, any annual rent, in every such case the same persons, their heirs and assigns, that have such use to have any such rent shall be adjudged and deemed in possession and seisin of the same rent of such estate as they had in the use of the rent; and they may distrain for non-payment of the rent in their own names. From this enactment it follows, that if a conveyance of lands be now made to A. and his heirs, - to the use and intent that B. and his assigns may, during his life, thereout receive a rent charge, - B. will be entitled to the rent charge, in the same manner as if a grant of the rent charge had been duly made to him by deed. The above enactment, it will be seen, is similar to the prior clause of the Statute of Uses relating to uses of estates (b), and is merely a carrying out of the same design, which was to render every use, then cognizable only in Chancery, an estate or interest within the jurisdiction of the courts of law (c). But in this case also, as well as in the former, the end of the statute has been defeated. For a conveyance of land to A. and his heirs, to the use that B. and his heirs may receive a rent charge, in trust for C. and his heirs, will now be laid hold of by the Court of Chancery for C.'s benefit, in the same manner as a trust of an estate in the land itself. The statute vests the legal estate in the rent in B.; and C. takes nothing in a court of law, because the trust for him would be a use upon a use(d). But C. has the entire beneficial interest; for he is possessed of the rent, charge for an equitable estate in fee simple.