Estate In Fee Simple In A Rent Charge

Where the yearly sum should not exceed 5

0

6

0

Should exceed 5 and not exceed 10

0

12

0

"

10

"

15

0

18

0

"

15

"

20

1

4

0

"

20

"

25

1

10

0

"

25

"

50

3

0

0

"

50

"

75

4

10

0

"

75

"

100

6

0

0

And when the sum should exceed 100, then for every .50, and also for any fractional part of 50..........................

3

0

0

But these duties are now repealed by stat. 33 & 34 Vict. c. 99; and the Stamp Act, 1870 (stat. 33 & 34 Vict. c. 97), now provides (sect. 72), that, where the consideration or any part of the consideration for a conveyance on sale consists of money payable periodically in perpetuity or for any indefinite period not terminable with life, such conveyance in mind, that transactions of this kind are very different from those grants of fee simple estates which were made in ancient times by lords of manors, and from which quit or chief rents have arisen. These latter rents are rents incident to tenure, and may be distrained for of common right without any express clause for the purpose. But as we have seen (s), since the passing of the statute of Quia emptores (t) it has not been lawful for any person to create a tenure in fee simple. The modem rents, of which we are now speaking, are accordingly mere rent charges, and in ancient days would have required express clauses of distress to make them secure. They were formerly considered in law as against common right (u), that is as repugnant to the feudal policy, which encouraged such rents only as were incident to tenure. A rent charge was accordingly regarded as a thing entire and indivisible, unlike rent service, which was capable of apportionment. And from this property of a rent charge, the law, in its hostility to such charges, drew the following conclusion: that if any part of the land, out of which a rent charge issued, were released from the charge by the owner of the rent, either by an express deed of release, or virtually by his purchasing part of the land, all the rest of the land should enjoy the same benefit and be released also (v). If, however, any portion of the land charged should descend to the owner of the rent as heir at law, the rent would not thereby have been extinguished, as in the case of a purchase, but would have been apportioned according to the value of the land; because such portion of the land came to the owner of the rent, not by his owni act, but by the course of law (x). But it is now provided (y), that the release from a rent charge of part of the hereditaments charged therewith shall not extinguish the whole rent charge but shall operate only to bar the right to recover any part of the rent charge out of the hereditaments released; without prejudice, nevertheless, to the rights of all persons interested in the hereditaments remaining unreleased, and not concurring in or confirming the release. A recent statute empowers the Inclosure Commissioners to apportion rents of every kind on the application of any persons interested in the lands and in the rent (z).

A release of part of the land was a release of the whole.

Apportionment on descent of part of the land.

is to he charged in respect of such consideration with ad valorem duty on the total amount, which will or may, according to the terms of sale, he payable during the period of twenty years next after the day of the date of such instrument.

(8) Ante, pp. 61, 114.

(t) 18 Edw. I. c. 1.

(u) Co. Litt. 147 b.

(v) Litt. s. 222; Dennett v. Pass, 1 New Cases, .388.

The Bankruptcy Act, 1870, provides for the disclaimer by the trustee for the creditors of any property that is not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the payment of any sum of money. But he cannot disclaim, if an application in writing has been made to him by any person interested in the property, requiring him to decide whether he will disclaim or not, and he has for a period of not less than twenty-eight days after the receipt of such application, or such further time as may be allowed by the court, declined or neglected to give notice whether he disclaims the same or not (a).

The rent charges of which we are speaking are usually further secured by a covenant for payment, entered into by the purchaser in the deed by which they arc granted. In order to exonerate the executors or administrators of such a purchaser from perpetual liability under this covenant, it is now provided (b) that where an executor or administrator, liable as such to the rent or covenants contained in any conveyance on chief rent or rent charge, or agreement for such conveyance, granted to or made with the testator or intestate whose estate is being administered, shall have satisfied all then subsisting liabilities, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum agreed to be laid out on the property (although the period for laying out the same may not have arrived), and shall have conveyed the property, or assigned the agreement to a purchaser, he may distribute the residuary personal estate of the deceased without appropriating any part thereof to meet any future liability under such conveyance or agreement. But this is not to prejudice the right of the grantor or those claiming under him to follow the assets of the deceased into the hands of the persons amongst whom such assets may have been distributed.

New enactment; release not now an extinguishment.

Apportionment by In-closnre Com-missioners.

Bankruptcy of owner of land subject to rent, etc.

Exoneration of executors and administrators from liability to pay rent charges.

(x) Litt. s. 224.

(y) Stat. 22 & 23 Vict. c. 35, s. 10.

(z) Stat. 17 & 18 Vict. c. 97, ss. 10 - 14.

(a) Stat, 32 & 33 Vict. c. 71, ss. 23, 24. The former act, 12 & 13 Vict. c. 106, s. 145, the provisions of which were very imperfect, was repealed by stat. 32 & 33 Vict. c. 83.

Although rent charges and other self-existing incorporeal hereditaments of the like nature are no favourites with the law, yet, whenever it meets with them, it applies to them, as far as possible, the same rules to which corporeal hereditaments are subject. Thus, we have seen that the estates which maybe held in the one are analogous to those which exist in the other. So estates in fee simple, both in the one and in the other, may be aliened by the owner, either in his lifetime or by his will, to one person or to several as joint tenants or tenants in common (c), and, on his intestacy, will descend to the same heir at law. But in one respect the analogy fails. Land is essentially the subject of tenure; it may belong to a lord, but be holden by his tenant, by whom again it may be sub-let to another; and so long as rent is rent service, a mere incident arising out of the estate of the payer, and belonging to the estate of the receiver, so long may it accompany, as accessory, its principal, the estate to which it belongs. But the receipt of a rent charge is accessory or incident to no other hereditament. True a rent charge springs from and is therefore in a manner connected with the land on which it is charged; but the receiver and owner of a rent charge has no shadow of interest beyond the annual payment, and in the abstract right to this payment his estate in the rent consists. Such an estate therefore cannot be subject to any tenure. The owner of an estate in a rent charge consequently owes no fealty to any lord, neither can he be subject, in respect of his estate, to any rent as rent service; nor, from the nature of the property, could any distress be made for such rent service if it were reserved (d). So, if the owner of an estate in fee simple in a rent charge should die intestate, and without leaving any heirs, his estate cannot escheat to his lord, for he has none. It will simply cease to exist, and the lands out of which it was payable will thenceforth be discharged from its payment (e).