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remainder of the year; to which English voluntarily assented. Eng-
lish accounted to, and settled with Bender, for the rent after the
5th July. The land was not redeemed from Bender by Key until
after the 1st January, 1859. The plaintiff admitted these facts to be
true, but objected to the evidence as irrelevant and incompetent.
The court sustained the objection, and excluded the evidence; to
which the defendant excepted, and which he now assigns as error.

R. W. Walker, J. The familiar rule, which prohibits the tenant



CHAP. VII.] ENGLISH V. KEY. 519

from denying the title of the landlord, in any proceeding instituted
by the latter, for the recovery of rent, or of possession, must be taken
with the qualification (now quite as well established as the principal
rule), that the tenant may show that he has been, bona fide, evicted
under a paramount title, or that, since the inception of the lease, the
title of the landlord has been extinguished, or has passed from him,
either by his own act, or by operation of law. Randolph v. Carlton,
8 Ala. 614; Pope v. Harkins, 16 Ala. 323; Smith v. Mundy, 18 Ala.
185; Wolf V. Johnson, 30 Miss. 513; Ryers v. Farwell, 9 Barb. 615;
1 Washb. Real Prop. 615.

Except where it is payable in advance, no claim for rent arises,
until the lessee has enjoyed the premises the whole time for which
the payment of a rent is stipulated to be made. Hence it follows,
that if the tenant be evicted by a paramount title, pending the lease,
and before the rent falls due, he will not be liable to his landlord for
rent for the unexpired term during which he may have enjoyed the
land. In conformity to the principle that an entire contract cannot
be apportioned, there is, in such cases, no apportionment of rent in
reference to the length of time of occupation. The enjoyment of the
estate for the stipulated term is the consideration for the covenant to
pay rent; and on the plain ground of equity, that the obligation to
pay ceases when the consideration for it ceases, the eviction of the
lessee by a paramount title works his discharge from the payment
of any rent thereafter falling due. Clum's Case, 10 Coke's R. 128;
Salmon v. Smith, 1 Wm. Saunders' R. 205 (n.); Wood v. Par-
tridge, 11 Mass. 488; Boardman v. Oshorn, 23 Pick. 295; Morse v.
Goddard, 13 Mete. 177; George v. Putney, 4 Cush. 351; Russell v.
Fabyan, 7 Foster (N. H.) 543; Martin v. Martin, 7 Md. 375; Giles v.
Comstock, 4 Comstock, 275; Smith's Landlord and Tenant, 134;
3 Kent, 464; 1 Washb. R. P. 97, 337, 341; Greenl. Cruise, title 28,
eh. 3, §§ 1 ei seq.

By the ancient law, no grant of a reversion could be made without
the consent of the tenant, expressed by his attornment to his new
landlord. Co. Litt. 309 a, n. (1). In early times, the relation of lord
and tenant was of a much more personal nature than it is at present;
and it was thought reasonable that a tenant should not have a new
landlord imposed upon him without his consent. The tenant, there-
fore, was able to prevent his lord from making a conveyance to any
person, whom he did not choose to accept as landlord; for he could
refuse to attorn to the purchaser, and without attornment the gi-ant
was invalid. The only means by which the landlord could convey his
reversion without his tenant's concurrence, was by the expensive
process of a fine levied in the court of common pleas. In process of
time, when the rent paid by the tenant became the only service, of
any benefit, received from him by the landlord, the doctrine was
found inconvenient; and the necessity of attornment to the validity



520 ENGLISH V. KEY. ' [cHAP. VII-

of the grant of a reversion was accordingly abolished by a statute
passed in the reign of Queen Anne, (4 and 5 Anne, ch. 16, § 9,) which
also provided, that no tenant shall be prejudiced by pajTnent of his
rent to the grantor before notice of the grant. Wms. Real Prop. 203.
Both of these provisions form part of the statute law of Alabama.
Code, § 1298; also, § 2215.

Rent is incident to the reversion; and the lessor's transfer of the
reversion, though without the tenant's attornment to the assignee,
or any express mention of the rent, carries with it the rent falling
due thereafter. The holder of the reversion may, indeed, sever the
rent from the reversion; but, unless it is specially reserved, the rent
follows the reversion as a part of the realty. With the exception of
cases arising under the statute of 11 George II, (ch. 19, § 15,) which
is confined to the case of a life-tenant lessor dying pending the lease,
and the principle of which has been re-enacted in some of the States
and adopted by the courts in others, (1 Washb. R. P. 98; 3 Kent, 471,)
rent cannot be apportioned as to time. There is, therefore, no appor-
tionment of the rent between the lessor and his assignee; but whoever
owns the reversion at the time the rent falls due, is entitled to the
entire sum then due; and a lessor who has parted with the reversion,
without specially reserving the rent, cannot maintain an action
against his lessee for rent falling due thereafter. Burden v. Thayer,
3 Mete. 76; Van Wicklen v. Paulsen, 14 Barb. 654; Demarest v.
Willard, 8 Co wen, 206; Martin v. Martin, 7 Md. 368; Peck v. North-
rop, 17 Coim. 217; Breeding v. Taylor, 13 B. Monr. 477; Sampson v.
Grimes, 7 Blackf. 175; Stout v. Kean, 3 Harring. 82; Birch v. Wright,
1 Tei-m R. 378; Flinn v. Calow, 1 M. & G. 589; 1 Washb. R. P. 337-
839. The defense thus arising in favor of the lessee, against an action
by the lessor for rent falling due after an assignment of the reversion,
does not depend upon eviction or ouster by the assignee, but is com-
plete without it. By the transfer of the reversion, and of the rent
afterwards falling due as incident thereto, the lessor becomes bound
to pay such rent to the assignee, and is discharged from liability
therefor to the lessor. George v. Putney, 4 Cush. 351 (356); Farley v.
Thompson, 15 Mass. 18; authorities supra.

The same principles apply, and the same results follow, in the case
of a transfer of the reversion by judicial sale. In Pope v. Harkins,
16 Ala. 324, Dargan, C.J., said: ''If the premises are sold by execu-
tion against the landlord, the tenant may show this in bar of the land-
lord's action for rent; for the purchaser occupies the same relation to
the landlord that a grantee by deed would." And the authorities are
clear to the point, that a purchaser of the lessor's estate at execution
sale is entitled to the rent falling due after the execution of the
sheriff's deed. Randolph v. Carlton, 8 Ala. ; Bank of Pa. v. Wise, 3
Watts, 394; Martin v. Martin, 7 Md. 368; Wilson v. Delaplaine, 3
Harring. 499; Moore v. Turpin, 1 Speers, 32; Montague v. Gay, 17



CHAP. VII.] EHRxMAN V. MAYER. 521

Mass. 439; George v. Putney, 4 Cush. 351 (356); Buffum v. Deane, 4
Gray, 485; 1 Washb. Real Prop. 333.

It is obvious, from what has been said, that the court erred in re-
jecting the evidence.

Judgmeyit reversed, and cause remanded.

Note. — If the reversioner reserved a right of entry upon non-
payment of the rent, and then transferred the reversion, and the rent
fell in arrear, the assignee could not enter. Littleton, Tenures, § 347.
Cf. Rice V. Boston & Worcester R. R. Corp., 12 All. (Mass.) 141,
supra. But this rule was changed by St. 32 Hen. VIII, c. 34, subdivi-
sion 5. (1540.)

A rent may be assigned without the reversion, and the assignee
may sue in his own name for the rent accruing after the assignment.
Beal V. Boston Car Spring Co., 125 Mass. 157; Moffatt v. Smith,
4 N.Y. 126.

There are statutes in some States changing the common law rule
that rent is not apportionable as to time.

" Rent in arrear is a chose in action and does not pass by a convey-
ance of the reversion." Damren v. American Power Co., 91 Me. 334,
337.



EHRMAN V. IMAYER.

57 Md. 612. 1881.

Miller, J. This appeal is from an order sustaining a demurrer to,
and dismissing the bill of complaint, filed by the appellant against the
appellees. The relief prayed for by the bill is that the defendants
may be required either to convey to the complainant the naked fee
held by them in a certain lot of gi'ound in the City of Baltimore, or to
execute to him a new lease thereof for ninety-nine years, renewable
forever, subject to a merely nominal rent. The facts of the case so
far as disclosed by the bill and accompanying exhibits are substan-
tially as follows : —

In September, 1782, John Eager Howard executed a lease to John
Hoos, of lot No. 649 in Howard's addition to Baltimore Town, for
ninety-nine years, with the usual covenant for perpetual renewal,
reserving a yearly rent of "fifteen pounds, nine shillings and four-
pence, current money." This lot has a frontage on Howard Street of
about one hundred and sixty-nine feet. In January, 1828, the execu-
tors of Howard, under a power contained in his will, sold and con-
veyed the reversion in this lot with the incident rent to John Hoff-
man, and on the 2nd of November, 1832, Hoffman convej^ed the
same to Lucretia Sears. Having thus become the owner of the rever-



522 EHRMAN V. MAYER. [CHAP, VII,

sion in the entire lot, Mrs. Sears on the 3rd of November, 1832,
accepted a surrender from one Eh Lilly, of his leasehold interest in a
large part of the lot, consisting of about one hundred and twenty-two
feet of its frontage, and on the same day she executed two leases for
ninety-nine years, renewable forever, of the part so surrendered,
one to Sommer and Smith for sixty feet, and the other to Lilly for
sixty-two feet and six inches, reserving in each lease an aimual rent of
$300. It does not appear, nor is it averred, that she ever made any
disposition of her reversion in the residue of the lot, consisting of a
frontage of about forty-six feet, which she had acquired under the
deed from Hoffman. She died in 1845, and the defendants are the
trustee and cestuis que trust, who hold the legal and equitable mterest
in her property under her will. In June, 1864, Ehraian, the com-
plainant, purchased from Gardiner and Matthews their leasehold
interest in a lot fronting twenty-two feet on Howard Street, which is
conceded to he part of the residue of the lot above mentioned, not em-
braced in the two leases of November, 1832. The deed by which this
interest was conveyed to Ehnnan, recites that the grantors acquired
their title under an assignment from one John Harman, executed in
April, 1857, subject to a yearly rent of S88, and they convey to Ehr-
man, subject to the same rent. No conveyance is produced showdng
how Harman acquired his title, nor is anj'thing further stated in
reference to the complainant's title. The bill, however, admits that
the lot thus conveyed to the complainant forms part of the lot
originally leased by Howard to Hoos, and from this admission, as
well as what is 'stated in the several conveyances above referred
to, it must be assumed that the complainant derives his title from
Hoos, the original lessee, through mesne assignments and sub-leases.
Such being the state of the case, the complainant, in his bill, avers
and insists that he is in fact the owner of his lot in fee, and is entitled
to a conveyance of the naked or technical paper title to the reversion
therein held by the defendants, upon two grounds.

1st. That Mrs. Sears, by receiving and accepting a surrender of
the leasehold interest in a part of the lot, in November, 1832, and
granting new leases thereof, reserving new and increased rents,
thereby extinguished the whole original rent reserved under the lease
from Howard, and complainant's lot, therefore, by operation of law,
became released and relieved from the payment of any part of that
rent. . . .

First. To sustain the first position, the appellant's counsel insists
that the rent reserved under our peculiar leases with covenants for
perpetual renewal, is in the nature of a rent charge, which camiot be
subdivided or apportioned. And where the party ha^^ng the rent,
purchases any portion of the land charged with its pajonent, the
whole rent is thereby extinguished. But conceding this to be the case
with respect to a rent charge, it is clearly not so, and never has been,



CHAP. VII.] EHRMAN V. MAYER. 523

with respect to a rent service, but just the contrary. In Littleton's
Tenures, sec. 222, the common law upon the subject is thus stated:
"Also, if a man hath a rent charge to him and his heirs, issuing out of
certain land, if he purchase any parcel of this to him and his heirs, all
the rent charge is extinct, and the annuity also, because the rent
charge cannot by such manner be apportioned; but if a man which
hath a rent service, purchase parcel of the land, out of which the rent
is issuing, this shall not extinguish all hut for the parcel; for a rent serv-
ice m such case may be apportioned according to the value of the
land." And in his comments upon this section. Lord Coke saj^s, that
such rent services as were not within the Statute Quia Emptores,
were apportionable at common law: "as if a man maketh a lease for
life or years, reserving a rent, and the lessee surrender part to the
lessor, the rent shall be apportioned ; so if the lessor recovereth part
of the land in an action of waste, or entereth for a forfeiture in part,
the rent shall be apportioned." Coke Litt. 148 a. The reasons upon
which this distinction rests, as given by Lord Coke and Chief Baron
Gilbert, need not be stated at length. It is sufficient for our present
purpose, that such distinction has in fact existed from the earliest
period of the common law. By the same authority (Littleton, sec.
213) rent service is defined to be "where the tenant holdeth his land
of his lord by fealty and certain rent, or by homage, fealty and certain
rent, or by other services and certain rent;'^ and in Smith's concise
and admirable lectures on the Law of Landlord and Tenant, (mar-
ginal page 90,) it is said that "every rent reserved upon a lease is a
rent service, and is accompanied by that which is the incident of
every rent service, namely, a right on the part of the lessor to dis-
train for it." In leases like the one now before us, as well as in other
leases of land, the rent most commonly reserved, is the yearly pay-
ment of a certain sum of money. According, then, to the authorities
referred to, (and none higher can be adduced,) if in such case, the
lessee surrenders a part of the land to the lessor, the rent for the
remainder is not extinguished, but apportioned. Woodfall's Land.
& Ten. (10th Ed.) 361, 362. We hold, then, that apportionment, and
not extinguishment, was the result of the conveyances of November,
1832, and that a proportionate part of the original rent reserved in
the lease of 1782, remained fastened upon the residue of the lot not
embraced in those deeds.



NOTE.



Covenants to pay rent are considered in the topic of Covenants
Running with the Land, infra.



624 STATUTE OF USES. [cHAP. VIIL

CHAPTER VIII.
THE STATUTE OF USES.



SECTION 1.

EFFECT OF THE STATUTE UPON THE METHODS OF
CREATING, OR TRANSFERRING, ESTATES.



STATUTE OF USES.
27 Hen. VIII, c. 10. 1536-

Where by the common laws of this reahn, lands tenements and
hereditaments be not devisable by testament, (2) nor ought to be
transferred from one to another, but by solemn livery and seisin,
matter of record, writing sufficient made bona fide, without covin or
■raud; (3) yet nevertheless divers and sundry imaginations, subtle
■nventions and practices have been used, whereb}^ the hereditaments
of this realm have been conveyed from one to another by fraudulent
feoffments, fines, recoveries and other assurances craftily made to
secret uses, intents and trusts; (4) and also by wills and testaments,
sometime made by nude parolx and words, sometime by signs and
tokens, and sometime by 'WTiting, and for the most part made by such
persons as be visited with sickness, in their extreme agonies and pains,
or at such time as they have scantly had any good memory or remem-
brance; (5) at which times they being provoked by greedy and cove-
tous persons lying in wait about them, do many times dispose indis-
creetly and unadvisedly their lands and inheritances; (6) by reason
whereof, and by occasion of which fraudulent feoffments, fines,
recoveries and other like assurances to uses, confidences and trusts,
divers and many heirs have been unjustly at sundry times disherited,
the lords have lost their wards, marriages, rehefs, harriots, escheats,
aids pur fair fits chivalier, & pur file marier, (7) and scantly any per-
son can be certainly assured of any lands by them purchased, nor
know surely against whom they shall use their actions or executions
for their rights, titles and duties; (8) also men married have lost
their tenancies by the curtesy, (9) women their dowers, (10) mani-
fest perjuries by trial of such secret wills and uses have been com-
mitted; (11) the King's highness hath lost the profits and advantages
of the lands of persons attainted, (12) and of the lands craftily put in
feoffments to the uses of aliens bom, (13) and also the profits of
v/aste for a year and a day of lands of felons attauited, (14) and the



SECT. I.] STATUTE OF ENROLMENTS. 525

lords their escheats thereof; (15) and many other inconveniencies
have happened, and daily do encrease among the King's subjects, to
their great trouble and inquietness, and to the utter subversion of the
ancient common laws of this realm; (16) for the extirping and ex-
tinguishment of all such subtle practised feoffments, fines, recoveries,
abuses and errors heretofore used and accustomed in this realm, to
the subversion of the good and ancient laws of the same, and to the
intent that the King's highness, or any other his subjects of this
realm, shall not in any wise hereafter by any means or inventions be
deceived, damaged or hurt, by reason of such trusts, uses or con-
fidences: (17) it may please the King's most royal majesty. That it
may be enacted by his Highness, by the assent of the lords spiritual
and temporal, and the commons, in this present parliament assem-
bled, and by the authority of the same, in maimer and form follow-
ing; that is to say. That where any person or persons stand or be
seised, or at any time hereafter shall happen to be seised, of and in
any honours, castles, manors, lands, tenements, rents, services, rever-
sions, remainders or other hereditaments, to the use, confidence or
trust of any other person or persons, or of any body pohtick, by
reason of any bargain, sale, feoffment, fine, recovery, covenant, con-
tract, agreement, will or otherwise, by any manner means whatso-
ever it be; that in every such case, all and every such person and
persons, and bodies politick, that have or hereafter shall have any
such use, confidence or trust, in fee-simple, fee-tail, for term of. life
or for 3^ears, or otherwise, or any use, confidence or trust, in remain-
der or reverter, shall from henceforth stand and be seised, deemed
and adjudged in lawful seisin, estate and possession of and m the
same honours, castles, manors, lands, tenements, rents, services,
reversions, remainders and hereditaments, with their appurtenances,
to all intents, constructions and purposes in the law, of and in such
like estates as they had or shall have in use, trust or confidence of or
in the same; (19) and that the estate, title, right and possession that
was in such person or persons that were, or hereafter shall be seised
of any lands, tenements or hereditaments, to the use, confidence or
trust of any such person or persons, or of any body politick, be from
henceforth clearly deemed and adjudged to be in him or them that
have, or hereafter shall have, such use, confidence or trust, after such
quality, manner, form and condition as they had before, in or to the
use, confidence or trust that was in them.



STATUTE OF ENROLMENTS.
27 Hen. VIII, c. 16. 15.36.

Be it enacted by the authority of this present parliament, That
from the last day of July, which shall be in the year of our Lord God



526 LUTWICH V. MITTON. [CHAP. VIII.

1536, no manors, lands, tenements or other hereditaments, shall
pass, alter or change from one to another, whereby any estate of
inheritance or freehold shall be made or take effect in any person or
persons, or any use thereof to be made, by reason only of any bargain
and sale thereof, except the same bargain and sale be made by writ-
ing indented, sealed and inroUed in one of the King's courts of record
at Westminster, (2) or else within the same county or counties where
the same manors, lands or tenements, so bargained and sold, he or
be, before the Gustos Rotulorum and two justices of the peace, and
the clerk of the peace of the same county or counties, or two of them
at the least, whereof the clerk of the peace to be one; (3) and the
same inrollment to be had and made ^\ithin six months next after
the date of the same writings indented; (4) the same Gustos Rotu-
lorum, or justices of the peace and clerk, taking for the inrollment of
every such writing indented before them, where the land comprised
in the same writing exceeds not the yearly value of forty shillings,
ii. s. that is to say, xij. d. to the justices, and xij. d. to the clerk; (5)
and for the im-oUment of every such writing indented before them,
wherein the land comprised exceeds the sum of xl. s. in the yearly
value, V. s. that is to say, ii s. vi. d. to the said justices, and ii. s. vi. d.
to the said clerk for the inrolling of the same : (6) and that the clerk
of the peace for the time being, within every such county, shall suffi-
ciently inroll and ingross in parchment the same deeds or writings
indented as is aforesaid ; (7) and the rolls thereof at the end of every
year shall deliver unto the said Gustos Rotulorum of the same county
for the time being, there to remain in the custody of the said Gustos
Rotulorum for the time being, amongst other records of every of the
same counties where any such inrollment shall be so made, to the
intent that every party that hath to do therewith, may resort and
see the effect and tenor of every such writing so inrolled.

II. Provided always. That this act, nor any thing therein con-
tained, extend to any manner lands, tenements, or hereditaments,
lying or being within any city, borough or town corporate within this
realm, wherein the mayors, recorders, chamberlains, bailiffs or other
officer or officers have authority, or have lawfully used to inroll any
evidences, deeds, or other writings \\dthin their precinct or limits; any
thing in this act contained to the contrary notwithstanding.



LUTWICH V. MITTON.

Cro. Jac. 604. 1620.

It was resolved by the two Chief Justices, Montague and Ho-
BART, and by Tanfield, Chief Baron, that upon a deed of bargain
and sale for years of lands whereof he himself is in possession, and the



SECT. I.] LUTWICH V. MITTON. 527

bargainee never entered; if afterwards the bargainors make a grant
of the reversion (reciting this lease) expectant upon it to divers uses,
that it is a good conveyance of the reversion; and the estate was
executed and vested in the lessee for years by the statute ; and
was divided from the reversion, and not like to a lease for years
at the common law: for in that case there is not any apparent lessee
until he enters.

Note. — Prior to the passage of the Statute of Uses, the doctrine
had become established m chancery that the legal o'^7iership of land
might be in one person, and the equitable owTiership in another per-
son. Thus, if A enfeoffed B and his heirs to the use of C and his heirs.
In such case, C had no rights at law, but was, in equity, protected
as a beneficiary.

If A (instead of enfeoffing B to the use of C) agi^eed, for a valuable
consideration, to hold the land for the benefit of C, C was, in equity,
protected as a beneficiary.

The Statute of Uses did not provide that all attempts to create uses
should be void. It allowed the use to be created, but pro\ided that,
forthwith it was created, it should be converted into a corresponding
legal right.

If, therefore, after the statute, A wished to convey his land to C,
it was only necessary' that A should put the use, or equitable right,
in C, and the statute would, without more, convert this equitable
right into the corresponding legal right. An equitable estate became
a legal estate. Therefore the only question was: how shall the equi-
table estate in C be raised? And the equitable estate was raised in C,
whenever A made a promise to hold the land for C (or, in anj' form,
agreed that C should have the benefit of the land), which promise



Online LibraryUnknownSelect cases and other authorities on the law of property → online text (page 59 of 97)