Lib.5. fol.113. of the villain, the lord by escheat, the lord that entereth or claimeth for mortmain, or the like, shall not take benefit of this statute. 11. If the lessor in the case before bargain and sell the reversion case. Lib. 8. by deed indented and enrolled, or if the lessor make a feoffment in fee, and the lessee re-enter, the grantee or feoffee shall not take any Rol. advantage of any condition, without making notice to the lessee. fol. 92. Frances' case. (Cro. Jac. 9. 46.) And so was it resolved in Winter's case, Mich. Banco, and oftentimes 12. Albeit the whole words of the statute be, for non-payment of the rent, or for doing of waste or other forfeiture, yet the grantees or assignees shall not take benefit of every forfeiture, by force of a in Communi condition, but only of such conditions as either are incident to the reversion, as rent, or for the benefit of the state, as for not doing of waste, for keeping the houses in reparation, for making of fences, scouring of ditches, for preserving of woods, or such like, and not for the payment of any sum in gross, delivery of corn, wood, or the like, so as other forfeiture shall be taken for other forfeitures like to those examples which were there put, videlicit, of payment of rent, and not doing of waste, which are for the benefit of the reversion (130). 1 Saun. 240 1 Leo. 62.) 201 b. 8. Circum Littleton, (sect. 325.) saith, If the rent be not paid at such time, then may the feoffor or his heirs enter, &c. By this section, quisite to en- and by the (Sc.) therein contained, six things are to be understood. stances re title a party to take ad vantage of a condition broken. (92)* *First, where our author saith, if the rent be behind, that though the rent be behind and not paid (x), yet if the feoffor doth not demand the same, &c. he shall never re-enter (N 2), because the land Demand (when necessary; (x) 40 Ass. 11. 20 H.5. 30. 31. 6 H. 7. 7. 19 H. 6. 76. 20 H. 6. 32. 22 H. 6. 46. Pl. Com. Kidwely's case, fol. 70. and Hill and Grange's case, fol. 73. (Noy. 23. 1 Rol. Abr. 459 460. Perk. sect. 827. Noy.23.) (130) "It has also been held upon this statute, that if a man makes a lease for years upon condition, that if the rent should be in arrear, it should be lawful to the lessor and his assigns to re-enter, and then the lessor assigns the reversion over, and the lessee attorns, and the lessor dies, the grantee shall not take advantage of the condition for want of these words his heirs,' in the reservation of the condition; the condition being that he and his assigns shall enter. By Brown, serj. who moved the case in C. B. ex relatione T. Hurst. It appears, therefore, that this reservation of condition is to be resembled to such a reservation of rent as is mentioned in page 47 a. which determined by the death of the lessor; but that nevertheless the grantee shall have advantage of the condition, during the life of the grantor, by the 32 H. 8. Supra 215 b. So note, the grantee of part of the reversion in the whole shall take advantage of a condition; for to this purpose the grantee of a reversion for life or years is an assignee within the 32 H. 8. who may enter; which, nevertheless, is very different in the case of a warranty; for a lessee for life, who has but a part of the estate in the whole, is not assignee for voucher. Infra 385 b. On the other hand, the grantee of the whole estate in reversion in part is not an assignee within the 32 H. 8: as if the reversioner in fee of four acres grants two acres in fee, the grantee cannot enter; which also is very different in the case of warranty, for the feoffee of two acres is an assignee for voucher. Infra 315 a."-Lord Nott. MSS. If a mortgagor and mortgagee make a lease in which the covenants for the rent and repairs are only with the mortgagor and his assigns, the assignee of the mortgagee cannot maintain an action for the breach of these covenants, because they are collateral to his grantor's interest in the land, and therefore do not run with it. Webb v. Russell, 3 T. R. 393. In the former case, the mortgagor may maintain an action on the breach of the covenant. Stokes v. Russell, 3 T. R. 678. 1 H. Bl. 562. Butler. Note 118. (N 2) See acc. 2 Ld. Raym. 750. 1 Salk. 250. 3 Burr. 1896, 7. So it is if there be a nomine pana given to the lessor for non-payment, the lessor must demand the rent before is the principal debtor; for the rent issueth *out of the land, and in an assise for the rent the land shall be put in view; and if the land be evicted by a title paramount, the rent is avoided, and after such eviction the person of the feoffee shall not be charged therewith, for the person of the feoffee was only charged with the rent in respect of the grant out of the land. (93)* made; Secondly, the demand must be made upon the land, because the where to be land is the debtor, and that is the place of demand appointed by law (1). If the king maketh a lease for years, rendering a rent payable at his receipt at Westminster, and after the king granteth the reversion roughe's to another and his heirs, the grantee shall demand the rent upon the Lib. 4. fol. 72, land, and not at the king's receipt at Westminster; for as the law 73 without express words doth appoint the lessee in the king's case to case. pay it at the king's receipt (o 2), so in case of a subject, the law appoints the demand to be on the land (3). he can be entitled to the penalty; or if the clause be, that if the rent be behind, the estate of the lessee shall cease and be void; because the presumption is, that the lessee is attendant on the land, to save his penalty and preserve his estate; and therefore shall not be punished without a wilful default, which cannot be made appear without a demand be proved, and that it was not answered. Hutt. 42. 114. Hob. 207. 331. 7 Co. 56 b. But where the remedy for recovery of the rent is by distress, there needs no demand previous to the distress, though the deed says, that if the rent be behind, being lawfully demanded, the lessor may distrain, for the very taking of the distress is a legal demand. Hob. 207. Moor, 883. Ante, 144 a. vol. 1. p. 446. Also where the power of re-entry is given to the lessor for non-payment, without any demand, there no demand is necessary. Dyer, 686. 5 Co. 40 b. And it is now held, that on an ejectment brought for non-payment of rent, an actual entry is not necessary. Salk. 259. Bull. N. P. 102. And by the 4 Geo. 2. c. 28. s. 2. in all cases between landlord and tenant, as often as one half year's rent shall be in arrear, the landlord having a right by law to re-enter for non-payment of rent, may, without any formal demand or re-entry, serve a declaration in ejectment for recovery of the demised premises; and shall recover judgment and execution in the same manner as if the rent in arrear had been lawfully demanded, and re-entry made. And if the lessee or other person claiming under the lease, suffers judgment to be recovered, and execution executed, without paying the rent and arrears with costs, and without filing any bill for relief in equity within six calendar months after such execution executed, he shall be barred from all relief in law or equity, other than by writ of error. On the construction of this statute, it has been decided, in a recent case, that though the lease contain the words, "being lawfully demanded," yet the lessor may bring an ejectment without any demand, provided he has a right of re-entry, and there was half a year's rent in arrear, and no sufficient distress on the premises. Doe, d. Scholefield v. Alexander, 2 Maul. & S. 525. Et vid. Doe, d. Smelt v. Fuchau, 15 East, 286.-[Ed.] (1) [To the place of performing the condition, see Litt. Sect. 340. and the commentary on that section.] (o 2) If the king makes a lease reserving rent, the tenant must pay it without demand, as is said, either to his receiver for that purpose, or at the receipt of the exchequer, as well as if by the words of the lease the rent had been made payable at his exchequer, or into the hands of his receiver. 4 Co. 73. Cro. Eliz. 462. Mod. 404. Dyer, 87. So the king shall take advantage of a condition for re-entry on non-payment of rent, without demand, though the lessor under whom the king claims, could not re-enter for default of payment of the rent without a demand made. Knight's case, 5 Co. 56 a, b.-[Ed.] (3) [The prior of St. John Jerusalem made a lease for years, reserving rent, with a condition of re-entry, and afterwards surrendered the priory, and all its possessions to the king. The judges were of opinion that the king, by reason of his prerogative, might take advantage of the condition without demand, though the prior himself could not. 5 Rep. 56 a, b. Butler. Note 86.] 49 Ass. 5. 329. If there be a house upon the same, he must demand the rent 16 Eliz. Dyer at the house. And he cannot demand it at the back-door of the house but at the fore-door, because the demand must ever be made at the most notorious place. And it is not material whether any person be there or no. Albeit the feoffee be in the hall or other part of the house, yet Bendloes the feoffor need not (y) but come to the fore-door, for that is the 5 Ph.& Mary. place appointed by law, albeit the door be open. en Tre. 4 & 202 a. (2) 15 Eliz. Dyer 329. (z) If the feoffment were made of a wood only, the demand must be made at the gate of the wood, or at some highway leading through (Ante 145 a.) the wood, or other most notorious place. And if one place be as notorious as another, the feoffor hath election to demand it at which he will, and albeit *the feoffee be in some other part of the wood ready to pay the rent, yet that shall not avail him. Et sic de similibus. (94)* Lib. 4. Bo roughe s Thirdly, and if the feoffor demand it on the ground at a place which is not most notorious, as at the back-door of a house, &c. and in pleading the feoffor allege a demand of the rent generally at the house, the feoffee may traverse the demand, and upon the evidence it shall be found for him, for that it was a void demand. Fourthly, if the rent be reserved to be paid at any place from the case. fol. 73. land, yet it is in law a rent, and the feoffor must demand it at the place appointed by the parties, observing that which hath been said before concerning the most notorious place. Pl. Com. 70. (Post. 211 a.) and at what Fifthly, and all this is to be understood when the feoffee is absent for if the feoffee cometh to the feoffor at any place upon any part of the ground at the day of payment, and offer his rent, albeit they be not at the most notorious place, nor at the last instant, the feoffor is bound to receive it, or else he shall not take any advantage of any demand of the rent for that day (1). Sixthly, therefore, the place of demand being now known, it is further to be known what time the law hath appointed for the same. This partly appeareth by that which hath been last said. For albeit the last time of demand of the rent is such a convenient time before the sun-setting of the last day of payment, as the money may be numbered and received, notwithstanding, if the tender be made to him that is to receive it upon any part of the land at any time of the (5 Rep. 114b.) last day of payment, and he refuseth, the condition is saved for that time; for by the express reservation the money is to be paid on the day indefinitely, and convenient time before the last instant, is the uttermost time appointed by law, to the intent (131) that then both (2 Cro. 423, 500.) (131) Yet the rent is not due till the last minute of the natural day; for if the lessor dies after sun-set, and before midnight, the rent shall go to the heir, and not to the exe cutors. 1 Saund. 287. Salk. 578. [Note to the twelfth edition.] [See ant. vol. 1. p. 486. n. (s 1).]—[Ed.] (1) For the difference of the demand to be made in case of a re-entry to avoid an estate, parties should meet together, the one to demand and receive, and the other to pay it, so as the one *should not prevent the other. But if the parties meet upon any part of the land whatsoever on the same day, the tender shall save the condition for ever for that time. (95)* Wade's case. & Grange's case, 167. 172. 20 H. 6. 30.31. 6 H. 7.3. And if the reservation of the rent be (as here Littleton putteth the Lib.5. fol.114. case) at certain feasts, with condition that if it happen the rent to be Pl. Com. Hill behind by the space of a week after any day of payment, &c. in this case the feoffor needeth not demand it on the feast day, but the uttermost time for the demand is a convenient time (as hath been said) before the last day of the week, unless before that the feoffee meet the feoffor upon the land, and tender the rent as is aforesaid (P 2). If a rent be granted payable at a certain day, and if it be behind and demanded, the grantee shall distrain for it, in this case the grantee need not demand it at the day; but if he demand it at any time after, he shall distrain for it, for the grantee hath election in this case to demand it when he will, to enable him to distrain (*). 218 a. claim. Regularly, when any man will take advantage of a condition, if he may enter, he must enter, and when he cannot enter he must make Entry or a claim; and the reason is, for that a freehold and inheritance shall Pl. Com. Browning not cease without entry or claim, and also the feoffor or grantor may and Beston's waive the condition at his pleasure. case, 133b. ton, cap. Vil As if a man grant an advowson to a man and to his heirs upon Vid. Littlecondition, that if the grantor, &c. pay twenty pound on such a day, enc &c. the state of the grantee shall cease or be utterly void (Q 2), the grantor payeth the money, yet the state is not revested in the grantor before a claim, and that claim must be made at the church. (a) And (a) Pl. Com. so it is of a reversion or remainder, of a rent, or common, or the like,case, 133 b. Browning's or the forfeiture of a sum nomine pœnæ, and of the demand to be made in case of an entry to distrain, see before, 144 a. (P2) Such condition, however, is not saved by the attendance of the lessee with the rent merely on the first day of payment, for if the lessor be not then there to receive it, the lessee must equally attend on the last day. 10 Co. 129 a. Plow. 70. a, b. 4 Bac. Abr. 220. But in case of a rent payable on a particular day, or within a certain time after, it is sufficient, if the lessee attend at the land on the first day of payment; and if the lessor do not attend there to receive it, the condition is saved. But in both cases a tender of the rent at any day, within the stipulated number of days, to the lessor himself, although it be off the premises, is sufficient. Cropp v. Hambleton, 1 Cro. Eliz. 48. Plowd. 70 a, b. 10 Co. 129 a. And now by the before-mentioned stat. of 4 Geo. 2. c. 28. s. 4. it is provided, that if the tenant, at any time before the trial in ejectment, (see Roe v. Davis, 7 East, 363.), pays or tenders to the lessor or landlord, or pays into court all the arrears of rent with the costs, the proceedings in ejectment shall cease. Before this statute both the courts of law and the courts of equity had exercised a discretionary power of staying the lessor from proceeding at law, in cases of forfeiture for non-payment of rent, by compelling him to take the money due to him. See the opinion of Lee, C. J. in Archer v. Snapp, Andr. 341. Et vid. Bull. N. P. 97. 2 Salk. 597. 8 Mod. 345. 10 Mod. 383. 2 Vern. 103. 1 Wils. 75. 2 Stra. 900. Where an ejectment is brought, on the preceding statute, for the forfeiture of a lease, acceptance of rent afterwards, by the landlord, has been held to be a waiver of the forfeiture; for it is a penalty, and, by accepting the rent, the penalty is waived. Per Ashton, J. in Doe v. Batten, Cowp. 247.—[Ed.] (*) Ante, 144 a. vol. 1. p. 447.—[Ed.] (92) See acc. 2 Co. 50. 2 And. 8. 3 Com. Dig. 130. Condition (o 5).-[Ed.] 42 E. 3. 1. Lib. 2. fol. 50. case. there must be a claim before the state be revested in the grantor by force of the condition, and that claim must be made upon the land. A fortiori, in case of a feoffment which passeth by livery of seisin, there must be a re-entry by force of the condition before the state be void. If a man bargaineth and selleth land by deed indented and inrolled, with a proviso, that if the bargainor pay, &c. that then the state shall cease and be void, he payeth the money, the state is not revested in the bargainor before a re-entry (R 2). And so it is, if a bargain and sale be made of a reversion, remainder, advowson, rent, common, Rep. 34a.b. &c. And so it is, if lands be devised to a man and to his heirs upon condition, that if the devisee pay not twenty pound at such a day, that his estate shall cease and be void, the money is not paid, the state shall not be vested in the heir before an entry. And so it is, of the reversion or remainder, an advowson, rent, common, or the like (s 2). Plo. 242.) Exceptions to the rule requiring en try. Vid. lib. 1. fol. 174. Dig's case. But the said rule hath divers exceptions. First, in the case of Littleton (sect. 350.) (T 2), for that he can make no entry, he shall not be driven to make any claim to the reversion; for seeing by construction of law the freehold and inheri20 E. 4. 18. 19. tance passeth maintenant out of the lessor; by the like construction, the freehold and inheritance by the default of the lessee shall be revested in the lessor without entry or claim. (97)* Pl. Com. Browning's case, 133 b. 20 E. 4. 19. 20 E. 4. 19. 20 H. 7. 4 b. (4 Rep. 53.) (1 Rep. 97.) *218 b. *2. If I grant a rent-charge in fee out of my land upon condition, there if the condition be broken, the rent shall be extinct in my land, because I (that am in possession of the land) need make no claim upon the land, and therefore the law shall adjudge the rent void without ony claim. 3. If a man make a feoffment unto me in fee, upon condition that I shall pay unto him twenty pound at a day, &c. before the day I let unto him the land for years, reserving a rent, and *after fail of payment, the feoffee (A) shall retain the land to him and to his heirs, and the rent is determined and extinct, for that the feoffor could not enter, nor need not claim upon the land, for that he himself was in posses (R 2) Adj. 2 Co. 53 b. Et vid. 1 Co. 174 a.-[Ed.] (s 2) [The entry or claim may be made either by the party himself, or by a stranger by his order. 2 Cro. 57.] An entry by a stranger without authority is good, if it be assented to afterwards; and it will support an ejectment, if the assent be before the demise in the ejectment. Fitchel v. Adams, Stra. 1128.-[Ed.] (T2) The case put by Littleton in sect. 350. is as follows: "If a lease be for five years, upon condition, that if the lessee within two years pays 201. he shall have the fee, and livery is made, the lessee has a fee conditional." Ant. p. 11. In this case, on the lessee failing to pay, the fee shall be revested in the lessor without entry; because he cannot enter during the term.—[Ed.] (A) The sense appears to require that Lord Coke should have used the word feoffor here instead of feoffee. See Mr. Ritso's Intro. p. 119. Note to 18th Edit. Lond. 1823. |