ment of. 107., with a like clause of re-entry, there would have CHAP. VI. been three several reservations, and as it were three dis- Rent. tinct demises, each house being chargeable with its own Apportionrent only (y). Where a lease of tithes and lands was granted at an entire rent, and was held void as to the tithes, a distress for rent was held bad, because there was no distinct rent due for the land (2). Where the owner of a house mortgaged it in fee, but continuing in possession let it as a ready-furnished house, and became bankrupt, it was held that the rent might be apportioned between the mortgagee and the assignees (a). Where a tenant under a lease has been evicted of part of the land out of which the rent issues, by a person having title paramount to that of the lessor, or where part of the land has been surrendered to the lessor, or where the lessor has aliened the reversion as to part,-in all these cases the rent must be apportioned, and so much of it only is payable to the lessor as corresponds with the value of what is still held by the tenant under him (b). If the tenant has been tortiously expelled by the act of the landlord himself, even from part only of the premises, there is no apportionment, but the whole rent will be suspended so long as the expulsion continues (c); except in the case of the sovereign, or where the eviction has followed upon the lessee's own wrongful act, as a forfeiture, or the recovery (y) Gilb. on Rents, 34. (2) Gardner v. Williams, 2 B. & Ad. 337; Neale v. Mackenzie, 1 M. & W. 747. (a) Salmon v. Mathews, 8 M. & W. 827; Dubytoft v. Curteen, Cro. Jac. 453; see however Cadogan v. Kennett, Cowp. 432; and Newman v. Anderton, 2 N. R. 224. (b) Co. Litt. 148 a; Bliss v. Collins, 5 B. & A. 876; Roberts v. Snell, 1 M. & Gr. 577; Smith v. Malins, Cro. Jac. 160; Stevenson v. Lambard, 2 East, 575. (c) Neale v. Mackenzie, 1 M. & W. 747. Rent. Apportioninent of. CHAP. VI. of part of the lands in an action of waste (d). If the lessor enter by virtue of a power reserved, or even as a trespasser, and the lessee be not evicted, there will be no suspension or apportionment of the rent (e). Where lands were demised, and the lessee had possession of part only, in consequence of the act of the lessor, it was held that the want of possession was tantamount to an eviction by the tortious act of the lessor, and that therefore the rent was not apportionable (ƒ). At common law there could be no apportionment of rent in respect of the time when it was payable, as where a lessee was evicted by title paramount in the middle of a quarter, or where the lease determined before the legal time of payment (g). So also if the estate or interest of the person entitled to any rent determined in the interval between one of the days of payment and another, as by his death, supposing him to be a tenant for life, the periodical sum then accruing was entirely lost to him and his representatives; and when the rent itself did not determine, but continued payable to some person in remainder or reversion, the whole sum was payable to that person in respect of the interval, although the greater portion of it might have elapsed in the time of his predecessor. The particular case, where the lease under which the rent was reserved determined on the death of a tenant for life, was provided for by 11 Geo. 2, c. 19, whereby it is enacted, "that where any tenant for life shall happen to die before or on the day on which any rent was reserved or made payable upon any demise or (d) Walker's case, 3 Co. Rep. 22; 1 Roll. Rep. 331; Moore, 203. (e) Bull. N. P. 165, 177; Hunt v. Cope, Cowp. 243; Newton v. Allin, 1 Gale & D. 44. (f) Neule v. Mackenzie, 1 M. & W. 747. (g) Clun's case, 10 Co. Rep. 128 a; Barwick v. Foster, Cro. Jac. 227; Price v. Williams, Cro. Eliz. 360; Slack v. Sharp, 8 A. & E. 366. Rent. Apportion ment of. lease of any lands, tenements, or hereditaments which CHAP. VI. determined on the death of such tenant for life, the executors or administrators of such tenant for life shall and may, in an action on the case, recover of and from such undertenant or undertenants of such lands, tenements, or hereditaments, if such tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion, of such rent according to the time such tenant for life lived, of the last year, or quarter of a year, or other time in which the said rent was growing due as aforesaid, making all just allowances, or a proportionable part thereof respectively." And now by statute 4 & 5 Will. 4, c. 22, it is enacted, "that rents reserved and made payable on any demise or lease of lands, tenements, or hereditaments, which have been and shall be made, and which leases or demises determined or shall determine on the death of the person making the same (although such person was not strictly tenant for life thereof), or on the death of the life or lives for which such person was entitled to such hereditaments, shall, so far as respects the rents reserved by such leases, and the recovery of a proportion thereof by the person granting the same, his or her executors or administrators (as the case may be), be considered within the provision of the statute 11 Geo. 2, c. 19." And by section 2, "that from and after the passing of this act, all rents service reserved on any lease by a tenant in fee or for any life interest, or by any lease granted under any power, and which leases shall have been granted after the passing of this act (royal assent June 16, 1834), and all rents charge, and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description, in the united kingdom of Great Britain and Ireland, made payable or coming due at fixed periods under any instrument that shall be executed after the passing of this act, or (being a will or testamentary instrument) that shall come into operation Rent. Apportionment of. any CHAP. VI. after the passing of this act, shall be apportioned so and in such manner that on the death of any person interested in such rents, annuities, pensions, dividends, moduses, compositions, or other payments as aforesaid, or in the estate, fund, office, or benefice from or in respect of which the same shall be issuing or derived, or on the determination by any other means whatsoever of the interest of any such person, he or she, and his or her executors, administrators, or assigns, shall be entitled to a proportion of such rents, annuities, pensions, dividends, moduses, compositions, and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof respectively (as the case may be), including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions in respect of charges on such rents, annuities, pensions, dividends, moduses, compositions, and other payments being made; and that every such person, his or her executors, administrators, and assigns, shall have such and the same remedies at law and in equity for recovering such apportioned parts of the said rents, annuities, pensions, dividends, moduses, compositions, and other payments, when the entire portion of which such apportioned parts shall form part shall become due and payable, and not before, as he, she, or they would have had for recovering and obtaining such entire rents, annuities, pensions, dividends, moduses, compositions, and other payments, if entitled thereto, but so that persons liable to pay rents reserved by any lease or demise, and the lands, tenements, and hereditaments comprised therein, shall not be resorted to for such apportioned parts specifically as aforesaid, but the entire rents of which such portion shall form part shall be received and recovered by the person or persons who, if this act had not passed, would have been entitled to such entire rents; and such portions shall be recoverable from such person or per Rent. Apportion. ment of. sons by the parties entitled to the same under this act CHAP. VI. in any action or suit at law or in equity." And by section 3, "the provisions herein contained shall not apply to any case in which it shall be expressly stipulated that no apportionment shall take place, or to annual sums made payable in policies of assurance of any description." The case of a lease made by a tenant in fee to a tenant for life, reserving rent, does not appear to be provided for in the first section of the act; and therefore where such a lease, having been granted before the passing of the act, determines by the death of the lessee for life between the two rent days, the rent is lost, and cannot be apportioned; and even if such a lease were granted after the passing of the act, it may be doubted whether such a case falls within the second section, and whether that section is not confined to cases where the rent continues, and is to be apportioned between the person, or his representative, who was entitled when it began to accrue, and another person who has come in as remainderman, or reversioner, or otherwise (h). It would seem the act does not apply to the case of a landlord determining the relation of landlord and tenant by his own act (i); nor to rents, payable by tenants from year to year, which have not been reserved by an instrument in writing (k); neither are rents apportionable under it between the real and personal representatives of a tenant in fee (1). for. Of the remedies which a landlord has for the recovery Remedies of rent, the most important is that by distress, which will be noticed more particularly in a subsequent chapter. He may, however, waive his right to distrain, and pursue the remedy given him by law by an action in covenant, in debt, or in assumpsit. (h) 1 Saund. 288 c, 6th ed. (i) Oldershaw v. Holt, 12 A. & E. 590. |