This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
9. Baker v. Adams, 5 Cush. (Mass.) 99; Shouse v. Krusor, 24 Mo. App. 279; In re Williams' Estate, 1 N. Y. Misc. 35, 22 N. Y. Supp. 906.
10. Co. Litt. 96a, 96b; Doe d. Edney v. Benham, 7 Q. B. 976; Van Renssalaer v. Jewett, 2 N. Y. 141; Price v. Thompson. 4
Ga. App. 46, 60 S. E. 800.
11. Co. Litt. 142a.
12. Sheppard's Touchstone, So: 3 Cruise's Dig. tit. 28, c. 1, Sec. 3; Comyn, Landlord & Ten., 95.
13. Moulton v. Robinson, 27 N. H. 550.
14. See Gowan v. Christie, L. R. 2 H. L. Sc. 273, 284, per Lord Cairns; Coltness Iron Co. v. Black, 6 App. Cas. 315, 335, per Lord Blackburn; Greville-nugent v. Mackenzie (1900), App. Cas. S3, per Lord Halsbury; Fairchild v. Fairchild (Pa.) 9 Atl. 255.
Grantor or lessor, and a rent which was granted by the owner of land to another person, without any transfer of the land, being merely a right to a periodical payment secured on the land.
In the former case, before the Statute of Quia Emptores, since the conveyance of the land created a relation of tenure, even in the case of the conveyance of an estate in fee simple, the payment of the rent reserved was regarded as one of the services incident to that relation.15 Accordingly, "a rent reserved upon the making of a feoffment, whereby the relation of tenure was created, was known as a "rent service."16
Upon a failure to perform this feudal service of paying rent, the lord was, as in the case of default in any other of the feudal services, entitled to enforce its performance by the seizure of chattels upon the land, this being known as the remedy of "distress."17 This right of distress was a distinctive feature of the particular class of rents known as "rents service."
The right of distress was an incident of the right of lordship, the "seignory," or, when the tenure was for an estate less than a fee simple, of the reversion remaining in the lord, and consequently, if the lord granted the seignory or reversion while retaining the rent, or granted the rent while retaining the seignory or reversion, the rent could no longer be enforced by distress, and was accordingly thereafter termed a "rent seek" or "dry rent."18
In the case of a rent created by the grant of a rent by the owner of land, of which he retained the ownership, no relation of tenure was created, and consequently there was no remedy by way of distress for the enforcement of the obligation. A rent so created was accordingly another form of "rent seek." A
Right of distress might, however, be expressly given in the grant, in which case the rent was known as a "rent charge."19 Rents charge, thus created by a grant of a rent by the owner of land, he retaining the entire interest in the land, are quite common in England, they being sometimes granted by the purchaser of land as part of the consideration therefor, and also being utilized as a mode of providing for younger sons and others in family settlements. In this country, however, they are very infrequent. They are in effect merely annuities secured on land, and in some cases equity will enforce their payment by a sale of the land, as in the case of a mortgage or other lien.
Rent reserved on the ordinary lease for years is properly a rent service.-1
15. Ante, Sec. G.
16. Litt, Sec. 122; Gilbert, Rents, 9.
17. Litt., Sec.Sec. 213, 216. See P08t,
18. Litt. Sec.Sec. 218, 225-228; Den d. Farley v. Craig, 15 N. J. L. 192.
After the Statute Quia Emptores, a conveyance of land in fee simple no longer had the effect of creating a relation of tenure between the feoffor and feoffee, but the feoffee merely became substituted in place of the feoffer. Consequently, a reservation of rent on such a conveyance thereafter made could not be regarded as a rent service, and was a rent seek, without the right of distress, unless this right was expressly given, so as to render it a rent charge.20 Since, however, this statute did not apply in the case of a conveyance of an estate less than a fee, a rent service is, even at the present day, created by the reservation of rent upon the conveyance or lease by a tenant in fee of a less estate, either an estate tail, an estate for life, or one for years; and likewise when a tenant of an estate less than a fee conveys or leases for a period less than his own estate, so as to leave a reversion in him. Consequently, the
19. Litt. Sec.Sec. 218, 219; Co. Litt. 150b; 2 Pollock & Maitland, Hist. Eng. Law, 129.
20. Litt. Sec.Sec. 215-217; Co. Litt. 143b, Hargrave's note; Bradbury v. Wright, 2 Doug. 624; Van Rensselaer v. Chadwick, 22 N. Y. 32.
In Pennsylvania, a rent created by a reservation upon the conveyance of land in fee simple is a rent service, but this is owing to the fact that the statute Quia Emptores is not in force there. Ingersoll v. Sargeant, 1 Whart. (Pa.) 336.
It is stated by Coke that rent service is so called "because it hath some corporal service incident to it, which at least is fealty,"22 and upon the strength of this statement, as transmitted by Blackstone,23 it has been asserted, in two states,24 that in view of the fact that fealty is not there recognized, rent service is non existent. In the time of Coke, since rent service was essentially tenurial in character, and fealty was an incident of tenure,25 it followed that rent service was accompanied by fealty, but the reason that rent service was so called appears really to have been that it was in itself a service. The expression rent service was in use nearly three hundred years before Coke,26 and the writers of that earlier time, as well as the judges, speak of rent as one class of service.27