Rent can, by the common law authorities, be reserved only out of land or things constituting in law a part of the land, to which the landlord may have recourse to distrain, and cannot be reserved out of incorporeal things.28 Whether the statement that rent must be reserved out of things to which the landlord may have recourse to

21. Litt. Sec.Sec. 214, 215; Ehrman v. Mayer, 57 Md. 621; Ingersoll v. Sergeant, 1 Whart. (Pa.) 337; Den d. Farley v. Craig. 15 N. J. L. 192.

22. Co. Litt. 142a.

23. 2 Blackst. Comm. 42.

24. Herr v. Johnson, 11 Colo. 393, 18 Pac. 342; Penny v. Little, 4 I11. 301.

25. Litt. Sec.Sec. 91, 132; Co. Litt. 67b, 93a.

26. See Y. B. 33-35 Edw. 1, p. 352, referred to in 2 Pollock &

Distrain is to be regarded as a statement of the reason for the rule precluding the reservation of rent out of incorporeal things, or a statement of the result of the rule, does not clearly appear. In favor of the former view reference may be made to statements to be found that the king may reserve rent upon a lease of incorporeal things for the reason that, by virtue of his prerogative, he can distrain on all lands of his lessee,29 and that rent may be reserved on a demise of the vesture or herbage of land for the reason that the lessor may distrain the cattle on the land.30 If the common law rule precluding the reservation of rent upon a lease of an incorporeal thing is to be regarded as based on the inability to distrain thereon, the question might arise whether the rule remains the same in any jurisdiction in which, as is the case in most of the states, the right of distress no longer exists.31 A differentiation originating in the existence or non existence of a right of distress might well be ignored after the right of distress has been entirely abolished. But whether or not the sum named upon a lease of an incorporeal thing, to be paid by the lessee, is to be regarded as rent, it is recoverable by the lessor in an action of contract against the lessee.32

Maitland, Hist. Eng. Law, 12S note.

27. See Bracton, bk. 2, c. 16, fol. 35a; Britton (Nichol's Ed.) bk. 1, c. 28, Sec. 16, bk. 2, c. 10, Sec. 1; Y. B. 33-35 Edw. 1, p. 208; Y. B. 1 & 2, Edw. 2 (Selden Soc.) p. 119, pl. 36; Y. B. 2 & 3, Edw. 2. p. 140, pl. 58.

28. Co. Litt. 47, 142a; Gilbert. Rents, 120; 2 Blackst. Comm. 41; Buszard v. Capel, 8 Barn. & Cr. 141.

Rent cannot be reserved out of chattels, and consequently sums to be paid by a bailee of chattels, as compensation for their use and enjoyment, are not properly referred to as rent,33 In the case of a lease of

29. Co. Litt. 47a, Hargrave's note.

30. Co. Litt. 47a.

31. In Raby v: Reeves, 112 N. C. 688, 16 S. E. 760, sums so reserved were regarded as not constituting rent, while a contrary view was adopted, without discussion, in Jordan v. Indianapolis Water Co., 159 Ind. 337, 64 N. E. 680. See 1 Tiffany, Landlord & Ten. p. 1119.

32. Co. Litt. 47a; Dean & Chapter of Windsor v. Gover, 2 Wms. Sauud. 302; Raby v. Reeves, 112 N. C. 688, 16 S. E. 760.

33. Spencer's Case, 5 Coke 17a; Sutliff v. Atwood, 15 Ohio St. 186. In Mickle v. Miles, 31 Pa. St. 20, and Vetter's Appeal, 99 Pa. St. 52, it was said that rent may issue, not only from lands and tenements, but also from the personal property necessary for land together with chattels, as for instance of a farm with the stock thereon, or of a house with the furniture therein, the whole rent has been regarded as issuing from the land alone, so as to authorize a distress on the land for the entire amount.34 So, upon an eviction from the land, the liability for rent has been regarded as entirely suspended, without reference to the fact that the lessee continues to enjoy the use of the chattels included in the lease.35 And a declaration in an action for the rent was not regarded as defective because it averred a demise of land alone, although chattels also were included.30 On the same principle, that the rent issues entirely out of the land, it has been decided in one state that the executor of the lessor, though entitled to the chattels at the end of the lease, has no right to any portion of the rent reserved on a lease of land and chattels.37 There are other cases, however, which refuse or fail to apply this theory when calculated to produce unjust results. For instance, it has been decided that the grantee of' the reversion in the land, without any interest in the chat-tels, is not entitled to the whole rent as against the grantor retaining the chattels,38 and there are two cases their enjoyment, but by this the court evidently meant merely that rent does not cease to be rent because reserved upon a lease of land which also includes chattels.

34. Newman v. Anderton, 2 Bos. & P. (N. R.) 224; Selby v. Greaves, L. R. 3 C. P. 594; Lath-rop v. Clewis, 63 Ga. 282: Stein v. Stely, - (Tex. Civ. App.) -, 32 S. W. 782.

35. Gilbert, Rents, 175; Y. B. 12 Hen. 8, 11, pl. 5. Emott v. Cole, Cro. Eliz. 255; Read v. Lawnse, 2 Dyer 212 b; Contra Bro. Abr. Apportionment, pl. 24.

36. Farewell v. Dickenson, 6 Barn. & C. 251.

37. Armstrong v. Cummings, 58 How. Pr. 332; Fay v. Holloran, 35 Barb. (N. Y.) 295.

38. Buffum v. Deane, 4 Gray (Mass.) 385. In Newton v. Speare Laundering Co., 19 R. I. 546, 37 Atl. 11, it is decided that the transferee of the land in such case is entitled only to the value of the use and occupation of the land.

The decision in Jones v. Smith, 14 Ohio, 606, that when chattels are included in the lease, the covenant to pay rent does not in which it is decided that if the chattels leased with the land are lost or destroyed, the rent should be apportioned, that is, diminished proportionally.39 These cases, however, appear hardly to accord with the ordinary rule, hereafter stated,40 that no apportionment of rent occurs on the destruction of the buildings on the land leased, and in one of these cases the decision is apparently regarded as involving a repudiation of that rule.

All payments which a lessee agrees with the lessor to make, are not necessarily rent. For instance, sums which the lessee agrees to pay to the lessor on account of good will,41 of improvements made by the latter,42 or of existing indebtedness,43 are not rent, the payments not being made by way of compensation for the use and enjoyment of the property. And this appears to be so regardless of whether the parties refer to such payments as rent, since what constitutes rent is a question of law and not of intention. Likewise, in spite of several decisions to the effect that an agreement by the lessee with the lessor to pay the taxes is in effect one to pay rent,44 the proper view is, it is submitted, that sums thus to be paid to a third person, not a representative of the lessor, do not constitute rent.4"' pass upon a transfer of the rent alone appears questionable.

39. Newton v. Wilson, 3 Hen. & M. (Va.) 470; Whitaker v. Haw-ley, 25 Kan. 674, 37 Am. Rep. 277. The same view is favored by Le Taverner's Case, 1 Dyer 56a.

40. Post, Sec. 413, notes 81-85.

41. Smith v. Mapleback, 1 Term. Rep. 441.

42. Hoby v. Roebuck, 7 Taunt. 157; Donellan v. Read, 3 Barn. & Adol. 899.

43. First Nat. Bank v. Flynn, 117 Iowa, 493, 91 N. W. 784. Pax-ton v. Kennedy, 70 Miss. 865, 12

So. 546; Miners' Bank of Potts-ville v. Heilner, 47 Pa. 452.

44. Gedge v. Shoenberger, 83 Ky. 91; Roberts v. Sims, 64 Miss. 597, 2 So. 72; Neagle v. Kelly, 146 I11. 460, 34 N. E. 947; Knight v. Orchard, 92 Mo. App. 466; Mc-cann v. Evans, 185 Fed. 93, 107 C. C. A. 313.

45. That a stipulation to pay taxes is not a stipulation to pay rent, see Hodgkins v. Price, 137 Mass. 13; Evans v .Lincoln County, 204 Pa. 448, 54 Atl. 321 ("water rents"); People v. Swayze, 15 Abb. Pr. (N. Y.) 432.

It has been well said in this connection that "rent has a fixed legal meaning, and to consider all payments which, by the terms of the lease, a tenant is bound to make, as coming within its definition, would lead to a confusion of ideas without necessity or advantage."46