act (m), or (being a will or testamentary instrument) that shall come into operation after the passing of the act, shall be apportioned so and in such manner that on the death (n) of any person interested in the rent or other periodical payment (0), or in the estate fund office *or benefice from which the [*60] same shall be derived, "or on the determination by any other means whatsoever of the interest of such person," he or she or his or her executors shall be entitled to a part of the rent or other periodical payment, proportionate to the time which shall have elapsed between the last payment and the day of the death or other determination (p). The section then provides the mode in which such proportionate part is to be recovered. The provisions of the act have been extended by statute to rent-charge payable in lieu of tithes under the Tithes Commutation Act (g). It will be observed that apportionment under the act 4 Will. 4, c. 22, as to some of the cases falling under section 2, applies only to periodical payments which have been settled by deed or will since the passing of that act. The previous law, therefore, still often applies where the instrument of settlement took effect before that date (r). The operation of the statute may (s) be excluded by express (t) stipulation. *We have so far been considering the cases in which an equitable [*61] adjustment of rights requires an apportionment of a rent of an annuity in respect of periods of time. But in the case of a rent issuing out of or charged upon lands, it is obvious that analogous cases requiring an adjustment of proportionate parts of the rent, may arise upon a severance of ownership of particular parts of the land subject to the rent. Where a rent is charged upon a piece of land the whole rent may be distrained for out of any part of the (m) As to the questions arising on these words, see Michell v. Michell, 4 Beav. 549; Re Longworth's estate, 1 K. & J. 1; Ex parte Bishop of London, 3 N. R. 246; Re Lawton's estate, L. R. 3 Eq. 469; Peers v. Sneyd, 17 Beav. 151. As to cases of apportionment not coming strictly within the act, see Lord Londesborough v. Somerville, 19 Beav. 295; Scholefield v. Redfern, 2 Dr. & S. 173; Bulkeley v. Stephens, 3 N. R. 105; Freman v. Whitbread, L. R. 1 Eq. 266, where the question is discussed whether, on a change of investment of a trust fund when stock is sold out, a tenant for life is entitled to a share of the purchase money proportioned to the time which has elapsed since the preceding dividend was paid. The result of these is that such apportionment will only be made in very special circumstances. (n) The act has been held not to apply so as to apportion rents between the real and personal representatives of a tenant in fee. Browne v. Amyot, 3 Hare, 173; Beer v. Beer, 12 C. B. 60; Re Clulow's estates, 3 K. & J. 689; it would seem to apply (if the leases be granted since it was passed) between the personal representatives of a tenant in tail, and the remaindermen in tail; and see Kevill v. Davies, 15 Sim. 466, in which case, however, the grounds of the decision are not stated. (0) The act has been held by V.-C. Kindersley in Trimmer v. Danby, 23 L. J. Ch. 979, to apply to an annuity which terminates on the death of the annuitant. The phraseology of the act is obscure on the point whether the periodical payment ceases with the death, but that case is, as the Vice-Chancellor remarks, so clearly within the mischief contemplated by the act, that such a construction is the natural one. See, however, R. v. Lords of the Treasury, 16 Q. B. 357. (p) The determination by "other means" does not extend to the case of eviction of a tenant by the landlord in the interval between two quarter days, see Slack v. Sharpe, 8 A. & E. 366; Oldershaw v. Holt, 12 A. & E. 590. Whether it would do so on the eviction by a paramount title, see 1 Roll. Abr. 235; Stevenson v. Lambard, 2 East, 575. If a tenant be evicted from part of the premises by his landlord, a suspension of the whole rent during the continuance of the eviction will take place; Morison v. Chadwick, 7 C. B. 266; Newton v. Allin, 1 Q. B. 518. (q) 6 & 7 Will. 4, c. 71, see s. 86. (r) See as to this, in addition to the cases previously cited, Kevill v. Davies, 15 Sim. 466; Norris v. Harrison, 2 Mad. 268; Anderson v. Dwyer, 1 Sch. & Lef. 301; Sheppard v. Wil son, 4 Hare, 392; Botheroyd v. Woolley, 5 Tyrwh. 522; Shippherdson v. Tower, 8 Jur. 485; Warden v. Ashburner, 2 De G. & S. 366; Re Lawton estates, L. R. 3 Eq. 469. (8) Sect. 3. (t) But not by implication from the context; Tyrrell v. Clark, 2 Dr. 86. land and the owner of the rent is in no way restricted in the selection. It follows from this that where the lands become divided among several owners, so that different parts belong to different individuals, there could be no apportionment of the rent so as to render the separate parts liable only to their proportionate rent (u), without the consent of the owner of the rent (x). But by the common law this could not be effected even with the consent of the owner of the rent, because it was long considered that a rent was one entire indivisible thing; so if he released part of the lands he must be deemed to release all (y). Consequently there was no satisfactory means of apportioning the rent upon particular parts, so as to render them liable only for their apportioned parts (z). To obviate this difficulty a statute (a) has been passed, which enacted (b) that the release of a part of the hereditaments charged should not extinguish the whole rent-charge, but should only operate to bar the right to recover *the rent out of the hereditaments released, without prejudice, nevertheless, to the rights of all persons interested in the hereditaments [*62] remaining unreleased, and not concurring in or confirming the same (c). It is presumed that this would extend to enable a release to be made of part of the lands from a proportionate part of the rent, and of the remainder of the lands from the residue, thus effecting a complete and satisfactory apportionment. Where an owner of a rent-service purchases, or acquires by descent or devise, part of the land out of which the rent issues, by the common law the owner of the remainder of the lands is released from an apportioned part of the rent (d). In the case of a rent-charge, if part of the lands descend to the owner of the rent-charge, there also is an apportionment (e); but, on the other hand, if he purchase or accept by devise part of the lands, the whole rent-charge is thereby extinguished (f). To those cases, however, where as above mentioned a rent-service would be if possible apportioned, there is the exception that if it consist of personal services to the lord which by their nature are incapable of apportionment, or if it consists of rendering yearly "a horse, a golden spear, or a clover, gilliflower or such like," then the rent is entirely extinguished upon any part of the lands becoming the property of the lord (g). Unless, indeed, the services be for the benefit of the *public, as to repair a bridge, or keep a beacon, or for the advancement of justice, in which case the liability for the whole rent continues charged upon the land [*63] remaining in the hands of the tenant (h). Where a tenant has been evicted (u) Gamon v. Vernon, 2 Lev. 231; Steven son v. Lambard, 2 East, 580; 1 Roll. Abr. 235; Curtis v. Spitty, 1 Scott, 737. (x) This, though necessarily the case, often leads to great difficulties in dealing with lands comprised in a lease. (y) 18 Vin Abr. 504; Co. Litt. 148 a; and see 3 Vin. Abr. 10. (2) See Butler v. Monings, Noy, 5; Deux v. Jefferies, Cro. Eliz. 352; Shep. Touch. by Prest. 345; Walmesley v. Cooper, 11 A. & E. rent, is entitled to demand proportionate contribution from the owner of the remainder; this right ought of course to be unaffected by any contract between the latter and the owner of the rent. (d) Litt. 222. (e) Ib. 224; Gilb. Rents, 156; see also Wotton v. Shirt, Cro. Eliz. 742; Campbell's case, 1 Roll. Ab. 237. (f) Co. Litt. 147 b; Dennett v. Pass, 1 Bing. N. C. 398; this case seems not to have been dealt with by Lord St. Leonards' Act above cited. It would seem. however, equally to require that an apportionment should be made. (g) Litt. 222; Talbot's case, 8 Rep. 104. from part of the lands the rent will be apportioned, and he will be released pro tanto (i), and it is said (k) the same result would hold if the tenant lose the land through the act of God, as if part be washed away by the sea. Previously to the statute above mentioned, the legislature had provided for the apportionment of rents where part of the land is taken for the purposes of a railway or other similar public company (1), or for building a church (m). It may be mentioned that in these cases equity anticipated the recent statutory changes of the law. Where the rent-charge was granted out of an equitable estate, no release of part ever affected the right to the remainder. At common law, if the reversion to which a rent-service was incident became partitioned upon a descent or devise to several persons, the rent was apportioned (n), and this was also the case upon a conveyance of the reversion in part of the lands, subject to the necessity of attornment or recognition of title under the conveyance by the tenant (o). Attornment is now by statute (p) rendered unnecessary, and therefore the owner of a rent-service, of whatever kind, is at liberty to devise or convey it to several persons at pleasure, and the devisees or assignees may make several distresses. Modern cases have extended the same power of disposition to owners of rent-charges (q). (215) [*64] *With reference to the payment of rent, if no particular place is mentioned in the reservation or grant, the regular place for the payment is upon the land subject to it (r); (216) but in the case of the king the payment must be either to his officers at the exchequer or to his Payment of rent. (i) Stevenson v. Lambard, 2 East, 575; 2 Roll. Abr. 489; Co. Litt. 148 b; see Jew v. Thirkwell, 1 Ca. Ch. 31. (k) 1 Roll. Abr. 236. (See the Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18, s. 119. (m) See 17 & 18 Vict. c. 32. Rep. 119, 120b; Ardo v. Watkins, Cro. Eliz. 637. (0) Co. Litt. 150. (p) 14 Anne, c. 16. (q) Rivis v. Watson, 5 M. & W. 255. (r) Co. Litt. 201. In order to take advantage of a condition of re-entry, the demand (n) Co. Litt. 148 a, 215 a; Dumpor's case, 4 must be made a convenient time before sun set; see cases cited 1 Saund. 287. (215) A tenant's obligation to pay rent may be apportioned; for, since rent is incident to the reversion, whenever that is severed, either by the act of the parties or by act of law, the rent will follow the reversion, and become payable to the assignees or owners of the respective portions of it. Nellis v. Lathrop, 22 Wend. 121; Daniels v. Richardson, 22 Pick. 569; Crosby v. Loop, 13 Ill. 625, 627. Where tenants in common of land subject to a rent-charge, upon a partition, interchange conveyances of the respective parcels, subject, in terms, to the claims of the lessor, an apportionment of the rent is effected if the lessor concurs in the arrangement. Van Rensselaer v. Chadwick, 22 N. Y. (8 Smith) 32. The release by the lessor, in such a case, to one of the tenants of the parcel partitioned to him, only extinguishes the rent as to the parcel so released; and the other parcel remains liable to its due proportion. Ib. Where lands are sold at a foreclosure sale the purchaser will not be entitled to the rent which accrues between the time of his purchase and the delivery of the deed to him in pursuance of such sale. Cheney v. Woodruff, 45 N. Y. (6 Hand) 98. (216) When, by the terms of the lease, rent in kind is payable at such a place in a market town as the lessor shall appoint, and he has made no appointment, it is the duty of the lessee to seek the lessor, ascertain the place of payment, and there deliver the rent. If the landlord cannot be found, a delivery anywhere within the market town is sufficient. And whether payable in money or in kind, if no place is specified, a tender of either upon the land is good, and prevents a forfeiture. Van Rensselaer v. Jones, 5 Denio, 449, 453; Walter V. Dewey, 16 Johns. 222; Hunter v. Le Conte, 6 Cow. 728; Lush v. Druse, 4 Wend. 313. receiver in the country (s). The rent is demandable at sunset on the day fixed for payment (t), though it would seem that it cannot be enforced till after midnight (u). The exact hour when it is due was formerly, before the apportionment statutes to which we have referred were passed, of considerable importance (x); it is now of little importance except in those cases which do not come within those statutes. Upon paying the rent a tenant may make all proper deductions, such, for instance, as rates and taxes paid by him in obedience to the law, yet ultimately payable by the landlord (y). Tithes. Having said so much as to the general nature of a rent and rent-charge, we are here led to digress somewhat in order to dwell for a short time upon a particular species of rent-charge, which from the interest attaching to its origin and history, and from certain peculiarities attending it, requires special notice. We refer to the rent now universally payable in lieu of tithes. Tithes formerly constituted a separate species of incorporeal hereditament, being the right to the tenth part of the produce of man's industry, which used to be rendered in kind; the tenth of the produce of a hayfield, or one in every ten lambs belonged to the tithe owner. Obviously, assuming the right to exist, it was detrimental to the interests of all persons concerned that the actual things themselves should be given, except at [*65] least in a very primitive state of society, where men combined in their own persons both the characters of producer and consumer. Consequently many partial inroads upon the practice of payment in kind have long been established. Even local acts of parliament have been by no means uncommon, under which a corn rent, i. e., a rent consisting of so many bushels of corn or their market value, or an ordinary money rent became payable in lieu of tithes in the parishes, for which the acts were passed. In other places there were what were called real compositions, i. e., agreements between the owners of the lands and the parsons or vicars to whom the tithes belonged made with the consent of the ordinary; and again there were established in many places customs under which the tithes were paid in some particular manner, called customs de modo decimandi (z). There were formerly numerous questions fruitful in litigation as to what constituted a good real composition or a good modus. The change of the law has rendered all the learning on these points obsolete. Suffice it here to say, that to support a real composition, it was necessary either to produce the deed creating it, or to show the existence of a deed dated later than the commencement of legal memory, i. e., the first year of Richard I. (a), and prior to the year 13 Eliz., in which year a statute was passed disallowing them for the (8) Boroughes's case, 4 Rep. 73. (u) Duppa v. Mayo, 1 Saund. 275, 287, 288 n. (17); 2 Mad. 268. (x) Rockingham v. Penrice, 1 P. W. 177; Williams, Ex. 774. (y) Such as land tax, 38 Geo. 3, c. 5, s. 17; tithe rent-charge, 6 & 7 Will. 4, c. 71, s. 80; Income tax, 5 & 6 Vict. c. 35; Metropolitan Main Drainage Rates, 18 & 19 Vict. c. 120, s. 217. (2) Where lands were in the possession of the king, or of spiritual persons or corporations, there was, also, a præscriptio de non VOL. I.-59 decimando. Thus a vicar paid no tithes to a rector for his glebe, for ecclesia decimas non solvit ecclesia. 1 Roll. Abr. 653; Selden on Tithes, 76. (a) Ante, vol. i. p. 69. If the modus was "rank," i. e. of such a large amount that it could not be supposed to have been paid in the reign of Richard I., it was held bad ; Startup v. Doderidge, 11 Mod. 60; Pyke v. Dowling, 2 W. Bl. 1257. See a recent discussion upon a similar question in a case of a customary fee on a marriage, Bryant v. Foot, L. R. 3 Q. B. 497; and as to a customary toll, Lawrence v. Hitch, Ib. 521. future to be made (b), *and to support a modus it was necessary to show [*66] that the custom had universally existed, i. e., before the commencement of the reign of Richard I., because a modus presumes a lost grant made before the memory of man. Moreover the modus was held to be bad if it did not comply with certain rules (c). Commutation of tithes. Provision has been now made for the commutation of all tithes, real compositions, and modus into rent varying only with the average price of corn. This has been accomplished by numerous acts, the principal of which was passed in the year 1836 (d). Under these acts the amount payable by each parish to the tithe owner has been ascertained, and stated as the value of a fixed number of imperial bushels of wheat, barley, and oats, and in order to determine the money payable, a return is annually made by the controller of corn, which return states the average price of wheat, barley, and oats, during the preceding seven years (e); upon this basis all tithes are now paid. The whole amount payable by the parish is also apportioned upon the various parcels of land throughout the parish, due provision being made for the respective rights of landowners, both with regard to the nature of the land, and also to their existing right to total or partial exemption at the time of the *apportionment. Moreover provision is made for re-arranging the appor[*67] tionment as occasion shall require (f). Under the operation of these acts all lands in a parish where the apportionment has been duly made, are absolutely discharged from the payment of all tithes (g), and instead of the tithes, the rent-charge issuing out of the lands, in accordance with the apportionment, is payable to the tithe owner. Although the whole state of circumstances is changed, still, since the rights and liabilities which now subsist have their origin in the ancient form of tithes, it is not uninteresting briefly to trace their history, and this indeed is necessary in order fully to understand the peculiarities still attending the right and the mode in which it is now enjoyed. History of tithes. We have seen (h) that our information as to the division of parishes is somewhat scanty; the history of the origin of tithes, which though intimately connected with that of parishes, dates from a still earlier period, is equally involved in obscurity, or even more so. A reasonable account of them, and one probably not materially different from the true one, is that they were at first voluntary offerings made by the owners of property for the purpose of supporting ecclesiastical institutions. The influence which the clergy exercised over men's minds would probably be exerted to the utmost in urging (b) 13 Eliz. c. 10. (c) Thus a modus must be certain and invariable, (1 Keb. 602) for the benefit of the parson (1 Roll. Abr. 649), it must be some thing different from the thing compounded for; Sheppard v. Penrose, 1 Lev. 179; and it must be as durable as the tithes which it replaced, i. e. an inheritance certain; Carleton v. Brightwell, 2 P. Wms. 462. See, also, Gryman v. Lewes, Cro. Eliz. 446; Hill v. Vaux, Salk. 656. These rules are all grounded upon this, that there must be nothing in the nature of the case inconsistent with the possibility of the modus having been paid in the same manner in the reign of Richard I. See Mirehouse, 180 to 186. (d) 6 & 7 Will. 4, c. 71; amended and extended by the following-7 Will. 4 and 1 Vict. c. 69; 1 & 2 Vict. c. 64; 2 & 3 Vict. c. 62; 3 & 4 Vict. c. 15; 5 Vict. c. 7; 5 & 6 Vict. c. 54; 10 & 11 Vict. c. 105; 23 & 24 Vict. c. 93. The last was passed for the purpose of converting corn-rents payable under local acts into rents similar to the general tithe rent. (e) 6 & 7 Vict. c. 71, sects. 56, 57. (g) 6 & 7 Will. 4. c. 71, s. 67. See Trimmer |