234. Rent is a profit issuing out of land, which is to be rendered or paid periodically by the tenant. Rents are of the following kinds:

(a) Rent service.

(b) Rent charge.

(c) Rent seek.

235. Rents charge and seek are called "fee farm rents."

183 Van Rensselaer y. Radcliff, 10 Wend. (N. Y.) 639. See Drury v. Kent. Cro. Jac. 14. 184 Bradshaw v. Eyre, Cro. Eliz. 570; Saundeys v. Oliff, Moore, 467.

185 Tyrringham's Case, 4 Coke, 36b; Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 639; Watts v. Coffin, 11 Johns. (N. Y.) 495; Leyman v. Abeel, 16 Johns. (N. Y.) 30; Livingston v. Ketcham, 1 Barb. (N. Y.) 592; Livingston v. Ten Broeck, 16 Johns. (N. Y.) 14; Bell v. Railroad Co., 25 Pa, St. 161. But see Hall v. Lawrence, 2 R. I. 218.

186 Livingston v. Ketcham, 1 Barb. (N. Y.) 592. But see Welcome v. Upton, 6 Mees. & W. 536; Leyman v. Abeel, 16 Johns. (N. Y.) 30. As to apportionment of commons, see Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 639; Livingston v. Ten Broeck, 16 Johns. (N. Y.) 14.

187 Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 639; Livingston v. Ten Broeck, 16 Johns. (N. Y.) 14; Leyman v. Abeel, Id. 30; Smith v. Floyd, 18 Barb. (N. Y.) 522; Livingston v. Ketcham, 1 Barb. (N. Y.) 592; Inhabitants of

188 Anon., Dyer, 285, pi. 40. See Wilson v. Mackreth, 3 Burrows, 1824; Cox v. Glue, 5 C. B. 533.

189 Ante, p. 165.

Rents have already been considered in treating of landlord and tenant,191 but they will here be discussed as incorporeal hereditaments. As such they are rights to receive money out of the profits of land. Estates may be created in rents, and for such purpose the same words of limitation are to be used as in creating estates in corporeal property.192 Estates so created are good only to the extent of the grantor's interest in the rent or in the land out of which the rent issues. Estates in rent are subject to dower and curtesy, like corresponding corporeal estates;193 and when the estate in the rent is one of inheritance it descends to the heirs.194 The classes of rents have been named in the black letter. Rent service was the only kind of rent originally known to the common law. It was accompanied by tenure and was given as a compensation for the services for which the land originally was liable. Distress was always an incident of rent service.195 The statute of quia emptores, by abolishing subinfeudation, prevented the creation of a rent service in fee;196 but such rents may exist in those states in which the statute of quia emptores has not been adopted,197 and they may exist in all states when the rent is less than a fee simple.198 A rent seek is one which is created by agreement of the parties, but no relation of tenure exists, and there was no right of distress at common law for the recovery of the rent,199 though the right was given by the statute of 4 George II. c. 28, § 5. Rent charge is the

Worcester v. Green, 2 Pick. (Mass.) 425; Bell v. Railroad Co., 25 Pa. St. 161; Trustees of Western University v. Robinson, 12 Serg. & R. 29; Carr v. Wallace, 7 Watts (Pa.) 394; Hall v. Lawrence, 2 R. I. 218; Peck v. Lockwood, 5 Day (Conn.) 22.

191 Ante, p. 134.

192 Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer v. Read, 26 N. Y. 558.

193 2 Washb. Real Prop. (5th Ed.) 2S8; ante, p. 87.

194 See Sacheverel v. Frogate, 1 Vent. 161. But it may be a chattel only, as when reserved on a lease for years. Knolles' Case, Dyer, 5b.

195 Renege v. Elliot, 9 Watts (Pa.) 258.

196 Van Rensselaer v. Read, 26 N. Y. 563; Van Rensselaer v. Hays, 19 N. Y. 68.

197 Wallace v. Harmstad, 44 Pa. St. 492; Ingersoll v. Sergeant, 1 Whart (Pa.) 837. See ante, p. 30.

198 2 Washb. Real Prop. (5th Ed.) 286.

199 2 Bl. Comm. 42; Cornell v. Lamb, 2 Cow. (N. Y.) 652.

§§ 234-235) rents. 377 same thing as rent seek, except that a right of distress is given by the original agreement of the parties.200 These two forms of rent are called collectively "fee farm rents," and differ only in the matter of the right of distress. Fee farm rents seldom occur in the United States. They may be used for the same purpose as a mortgage. Fee farm rents are often used in England to raise portions for heirs and jointures for married women.201 Rents may be created either by deed 202 or by prescription.203 When created by deed, it may be by a grant of a rent to a person to whom no estate in the land is conveyed, or by a reservation of a rent out of land granted.204 Rents may be created by any form of conveyance which is sufficient to transfer other incorporeal hereditaments, and also they may be granted in trust, or conveyed by way of uses. After a rent has been created, it may be transferred like any other estate.205 The rules governing assignments of rent of the land out of which they issue, and of the reversion, if there be one, have already been considered.206 Although the rule was otherwise at common law, the owner of a rent may now divide it up, or it may descend to several heirs.207 When the owner of a rent service purchases part of the land out of which the rent issues, or releases a part of the rent to the owner of that land, the rent is apportioned pro rata.208 With a rent charge, however, it is otherwise, and the same acts would cause an extinguishment of the rent, because no apportionment is possible except by a new agreement of the parties.209 It is otherwise, however, when part of the land has come to the owner of the land by descent, instead of by his own act.210 An eviction of the tenant from the land out of which the rent is reserved will extinguish the rent, but, if the eviction is from part of the land only, the rent will be apportioned. But if the eviction is by the owner of the rent, though it be from only part of the land, the rent is extinguished.211 Apportionment of rent as to time has been considered in another place.212 The doctrine of merger applies to rents.213 Distress, as a remedy for rent, we have already considered,214 as well as covenants for the payment of rent,215 and conditions of re-entry for its nonpayment.216 The remedy by which rent may be recovered by action is governed by the form of instrument creating the rent. Thus, if the rent is created by indenture, covenant is the proper form of action;217 while, if the creation was by a deed poll, assumpsit would be the remedy.218 Debt for rent lies in nearly all cases.219

200 van Rensselaer v. Read, 26 N. Y. 558; Hosford v. Ballard, 39 N. Y. 147; Van Rensselaer v. Hays, 19 N. Y. 68. But cf. Turner v. Lee, Cro. Car. 471. And see contra, Hool v. Bell, 1 Ld. Raym. 172.

201 And see Scott v. Lunt, 7 Pet. 596; Foltz v. Huntley, 7 Wend. (N. Y.) 210; Adams v. Bucklin, 7 Pick. (Mass.) 121; Williams's Appeal, 47 Pa. St 283.

202 ingersoll v. Sergeant, 1 Whart. (Pa.) 337; Taylor v. Vale, Cro. Eliz. 166. Cf. Williams v. Hayward, 1 El & El. 1040.

203 Wallace v. Presbyterian Church, 111 Pa, St 164, 2 Atl. 347.

204 Scott v. Lunt 7 Pet 596; Folts v. Huntley, 7 Wend. (N. Y.) 210.

205 Van Rensselaer v. Read, 26 N. Y. 558; Van Rensselaer v. Hays, 19 N. Y. 68. Cf. Truloek v. Donahue, 76 Iowa, 758, 40 N. W. 696.

206 Ante, p. 147.

207 Cook v. Brightly, 46 Pa. St. 439; Farley v. Craig, 11 N. J. Law, 262. But see Ryerson v. Quackenbush, 26 N. J. Law, 236.

208 Co. Litt § 222; Ingersoll v. Sergeant, 1 Whart. (Pa.) 337.

209 Dennett v. Pass, 1 Bing. N. C. 388. But see Farley v. Craig, 11 N. J. Law, 262.

Franchises

236. "A franchise is a privilege or immunity of a public nature, which cannot be legally exercised -without legislative grant." At common law, franchises are hereditaments.

210 Cruder v. Mclaury, 41 N. T. 219, 223.

211 2 Washb. Real Prop. (5th Ed.) 289.

212 Ante, p. 60.

213 Cook v. Brightly, 46 Pa. St 439.

214 Ante, p. 145.

215 Ante, p. 140.

216 Ante, p. 150.

217 Finley v. Simpson, 22 N. J. Law, 311. And see Thnrsby v. Plant, 1 Lev. 259; Stevenson v. Lambard, 2 East, 575. But cf. Milnes v. Branch, 5 Maule & S. 411.

218 Goodwin v. Gilbert, 9 Mass. 510; Johnson v. Muzzy, 45 Vt. 419; Hinsdale v. Humphrey, 15 Conn. 431. And cf. Falhers v. Corbret, 2 Barnard, 386; Johnson v. May, 3 Lev. 150.

219 Farewell v. Dickenson, 6 Barn. & C. 251; Reade v. Jobnson, Cro. Eliz. 242; Newcomb v. Harvey, Carth. 161; Sti'oud v. Rogers, 6 Term. R. 63, note; Case of Loringe's Ex'rs, Y. B. 26 Edw. III., p. 10, pi. 5; Gibson v. Kirk, 1 Q. B. 850; Thomas v. Sylvester, L. R. 8 Q. B. 368. But see Marsh v. Brace, Cro. Jac. 334; Bord v. Cudmore, Cro. Car. 183; Pine v. Leicester, Hob. 37; Humble v. Glover, Cro. Eliz. 328; Webb v. Jiggs, 4 Maule & S. 113.

§ 236)