This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
If the conveyance is executed during the existence of a tenancy, the purchaser of the reversion, though merely for years (/), thereupon becomes entitled to the accruing (g) and future rent, whether reserved at short periods or half-yearly (h) ; and may recover it by action, or (after giving notice of the conveyance) by distress (i) : but he cannot recover arrears due before the conveyance (/.•); or subsequent rent which the tenant, in ignorance of the conveyance, has paid to the vendor (I). So, it would appear, the purchaser of a part only of a rent-charge, may, after conveyance, distrain for his proportionate part (m) : but a severance of the reversion destroys the right to distrain for by-gone rent (n).
Purchaser's right to rent, if property in lease, etc.
And as to the power of a trustee under the Bank. Act, 1883, over the bankrupt's estate tail, see s. 56 (5) of that Act.
(d) Lloyd v. L., (1843) 4 D. & War. 354.
(e) Pember v. Mathers, (1779) 1 Br. C. C. 52. As to the liability under an implied contract of each successive assignee of a lease to indemnify the original lessee, notwithstanding an express covenant to indemnify the immediate assignor, see Motile v. Garrett, (1872) L. R. 7 Ex. 101 ; 41 L. J. Ex. G2 ; Bonnrr v. Tottenham, etc. Bldg. Soc., 1899, 1 Q. B. 161 ; 68 L. J. Q. B. 114 ; ef. Johns v. Pink, 1900, 1 Ch. 296 ; 69 L. J. Ch. 98.
(f) Harmer v. Bean, (1853) 3 C. & K. 307.
(g) Flight v. Bentley, (1835) 7 Si.
149; 4 L. J. N. S. Ch. 262 ; and a parol agreement for apportionment is invalid; Flinn v. Calow, (1840) 1 Man. & G. 589.
(A) Hughes v. Wells, (1854) cited 1 Dav. 603.
(i) Moss v. Gallimore, (1779) 1 Doug. 279 ; though the rent was due at the date of the notice ; Rogers v. Humphreys, (1835) 4 A. & E. 299 ; 5 L. J. N. S. K. B. 65 ; and see Cadle v. Moody, (1861) 7 Jur. N. S. 1249; 30 L. J. Ex. 385.
(k) Flight v. Bentlcy, (1835) 7 Si., see p. 151.
(I) 4 & 5 Anne, c. 3 (Ruff. 4 Anne, c. 16), s. 10; Birch v. Wright, (1786) 1 T. R, see p. 385.
(m) Rivis v. Wilson, (1839) 5 M. & W. 255.
(n) Stately v. Allcock, (1851) 16 Q. B. 636 ; 20 L. J. Q. B. 320 ; see
The Apportionment Act, 1834, does not appear to apply to the case of a sale; or, as between vendor and purchaser, to affect the latter's right to accruing rents (o). By the Apportionment Act, 1870, all rents (p) are, like interest on money lent, to be considered as accruing from day to day, and are made apportionable in respect of time accordingly; and the person liable to pay the rent is not to be resorted to for an apportioned part; but the entire rent is to be paid to the person who would have been entitled to receive it, if not apportionable; and the right to an apportioned part is to be enforced against him, not against the tenant (q). Where a tenant becomes bankrupt, the rent is apportionable under this Act, the landlord being entitled to prove in the bankruptcy for so much of the rent as has accrued due prior to the date of the order of adjudication, and is entitled to distrain for the full rent due after that day. The language of the Act is certainly wide enough to include an apportionment of rent as between vendor and purchaser, but the point has not been expressly decided.
The Apportionment Act.
Seer v. S., (1852) 12 C. B. 60; 21 L. J. C. P. 124.
(o) See and consider Browne v. Amyot, (1844) 3 Ha. 173 ; 13 L. J. Ch. 232 ; Seer v. S., sup. For decisions under the Act, see Knight v. Boughton, (1849) 12 Beav. 312; 19 L. J. Ch. 66 ; Lock v. Be Burgh, (1851) 4 De G. & S. 470 ; 20 L. J. Ch. 384, deciding that rents are apportionable as between the real and personal representatives, where the lease is granted after, but under a power created before, the Act came into operation ; see also Be Clulow's Est., (1857) 3 K. & J. 689 ; 26 L. J. Ch. 513 ; but a devisee for life is not entitled, as against the remainderman, to apportionment upon parol leases from year to year created by the testator, and not determined by himself by act inter vivos ; Cattley v. Arnold, (1859) 1 J. & H. 651; 28 L. J. Ch. 352 ; and it seems now well settled that the Act applies to all- cases where either the lease reserving the rent, or the deed creating the life interest, are subsequent in date to the Act; Plummer v. Whiteley, (1859) John. 585: 29
L. J. Ch. 247; Llewellyn v. Sous, (18G6) 2 Eq. 27. Dividends declared by joint-stock companies are not apportionable ; Re Maxwell's Tr., (1863) 1 H. & M. 610 ; 32 L. J. Ch. 333; Bates v. Mackinley, (1862) 31 Beav. 280 ; 31 L. J. Ch. 389 ; unless, perhaps, the dividends are payable on certain precise days. Orders of the Court are not instruments in "writing within the meaning of the Act; see Be Lawtorn's Est., (1866) 3 Eq. 469 ; Jodrell v. J, (1869) 7 Eq. 461 ; 38 L. J. Ch. 507 ; but an award of the Tithe Commissioners has been held to be so ; Heasman v. Bearse, (1869) 8 Eq. 599.
(p) The term includes rent-service, rent-charge, rent-seek, tithes, and periodical payments in lieu of or in the nature of rent or tithe ; see s. 5.
(q) S. 4 ; Be Howell, 1895, 1 Q. B. 844; 64 L. J. Q. B. 454; and see Be South Kensington Co-op. Stores, (1881) 17 Ch. D. 161 ; 50 L. J. Ch. 446 ; Shackell v. Chorlton, 1895, 1 Ch. 378 ; 64 L. J. Ch. 353, cases of company in liquidation remaining in possession.
If the tenancy is under a lease by deed(r), for a term which is subsisting at the date of the conveyance, the purchaser of the reversion may sue upon breaches of covenants which occurred before conveyance (s) ; but not, it would seem, if the lease is determined before the conveyance, though the tenancy continue (t). His right to sue exists, though he has purchased the reversion only of a part, or undivided part (u), of the demised premises; and, though the term may, as respects the residue of the premises, have merged in the reversion (a-). Thus, where there are mutual covenants by owners of land for themselves, their heirs and assigns, with adjoining owners, their heirs and assigns, to comply with certain conditions, a lessee of one of the adjoining owners is an assign within the covenant, and may sue to restrain breaches thereof (y). But a purchaser of the reversion cannot enter in respect of a breach of condition which occurred prior to the conveyance of the reversion (z) ; nor, until the Law of Property Amendment Act, 1859 (a), could he enter for conditions broken, unless he had the reversion in the entirety (b). An entry might, however, be made by the purchaser of the immediate part of the reversion in the entirety; e.g., if a termor underlet to A., and then assigned to B. the whole of the demised premises for the residue of the original term wanting one day, B. might and may enter for condition broken by A. (c) subsequently to the assignment (d). And in none of the above cases is it necessary that the tenant should attorn to (e), or otherwise acknowledge the title of, the purchaser. Where the lease is by writing not under seal, the right to sue upon it as a contract does not pass with the reversion; and the lessor may, after conveying the reversion, sue the lessee in respect of breaches of agreement (e.g., to repair the premises), committed during the tenancy but subsequently to the conveyance of the reversion (f) : but the assignee of the reversion may maintain an action against the tenant for use and occupation (g).