CHAPTER XVI.

MATTERS OF RENT.

684. ANOTHER head of concurrent jurisdiction of the same nature and resulting also from the imperfection of the remedy at law is in the case of RENTS. This subject has been already touched in other places; and a few particulars only will be here taken notice of, which have not been already fully discussed. Thus for instance in case of a rent seck if the grantee has never had seisin and the rent cannot be recovered at law, Courts of Equity will decree a seisin of the rent and perhaps also that it be paid to the party. So if the deeds are lost by which a rent is created, so that it is uncertain what kind of rent it was, or if (as we have seen) by reason of a confusion of boundaries or otherwise the lands out of which it issues cannot be exactly ascertained, Courts of Equity will in like manner interfere. So if the remedy for the rent has become difficult or doubtful at law, or if there is an apparent perplexity and uncertainty as to the title or as to the extent of the responsibility of the party from whom it is sought, — in all such

1 Ante, §§ 508 to 515.

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2 Francis's Maxims, 6, § 3, p. 25 (edit. 1739); Ferris v. Newby, cited 1 Cas. Ch. 147; Palmer v. Whettenhal, 1 Cas. Ch. 184; 1 Fonbl. on Equity, B. 1, ch. 3, § 3; Com. Dig. Chancery, 4 N. 1, Rent; Thorndike v. Collington, 1 Cas. Ch. 79; Web v. Web, Moore, R. 626; Davy v. Davy, 1 Cas. Ch. 147. Collet v. Jacques, 1 Cas. Ch. 120; Cocks v. Foley, 1 Vern. 359; Duke of Leeds v. New Radnor, 2 Bro. Ch. R. 338, 518, 519; Holder v. Chambury, 3 P. Will. 256; Livingston v. Livingston, 4 John. Ch. R. 290, 291.

4 Ante, § 622; 1 Fonbl. Eq. B. 1, ch. 3, § 3, note (f); Francis's Maxims, 6, § 3, p. 25 (edit. 1739); Bowman v. Yeat, cited 1 Ch. Cas. 145; Davy v. Davy, 1 Ch. Cas. 146, 147; Cocks v. Foley, 1 Vern. 359; North v. Earl of Strafford, 3 P. Will. 148; Holder v. Chambury, 3 P. Will. 256; Com. Dig. Chancery, 4 N. 1, Rent; Duke of Bridgewater v. Edwards, 4 Bro. Parl. Cas. 139; s. c. 6 Bro. Parl. Cas., by Tomlins, 368. As to the ancient remedy for rents, see 3 Reeves's History of the Law, ch. 21, pp. 317 to 320; 3 Black. Comm. 6; Id. 231; 2 Black. Comm. 42; Id. 288; Bacon, Abridg. Rent, A. K.

cases Courts of Equity will maintain jurisdiction and upon a due ascertainment of the right will decree the rent.1 (a) So if a rent is devised out of a rectory to a devisee for which he cannot have any remedy by distress or otherwise at law, Courts of Equity will decree him the rent, not only in future, but all arrears.2 So if a lease of an incorporeal thing is assigned, and the assignee enjoys it, he will be decreed in equity to pay the rent, although not bound at law. So if an assignee of a term rendering rent assigns over, the lessor will be entitled to relief in equity for the rent against the first assignee so long as he held the land, although he may have no remedy at law for these arrears. So the executor of a terre-tenant of lands liable for a rent charge which the terretenant has suffered to be in arrear, will be compellable in equity to pay the same, although the testator was not personally bound for the rent, which was recoverable only by distress; for his personal estate has been augmented by the non-payment.5 So a cestui que trust of a lease rendering rent will in equity be compellable to pay the rent during the time wherein he has taken the profits if his trustee (the lessee) has become insolvent. So

1 Livingston v. Livingston, 4 John. Ch. R. 287, 290. In Benson v. Baldwyn (1 Atk. R. 598), Lord Hardwicke said: Where a inan is entitled to a rent out of lands, and through process of time the remedy at law is lost or become very difficult, this court has interfered and given relief upon the foundation only of payment of the rent for a long time, which bills are called bills founded upon the solet. Nay, the court has gone so far as to give relief where the nature of the rent (as there are many kinds at law) has not been known so as to be set forth. But then all the terre-tenants of the lands out of which the rent issues must be brought before the court, in order for the court to make a complete decree.' See also Collet v. Jacques, 1 Ch. Cas. 120. 2 Com. Dig. Chancery, 4 N. 1, Rent; Thorndike v. Collington, 1 Ch. Cas. 79.

3 Com. Dig. Chancery, 4 N. 1, Rent, which cites City of London v. Richmond, 2 Vern. 423; s. c. 1 Bro. Parl. Cas. 30 [Id. 516, Tomlins's edit.].

* Com. Dig. Chancery, 4 N. 1, Rent, which cites Treackle v. Coke, 1 Vern. 165; Valliant v. Dodemede, 2 Atk. 546, 548; Richmond v. City of London, 1 Bro. Parl. Cas. 30; [Id. 516, Tomlins's edit ;] s. c. 2 Vern. 422, 423.

5 Com. Dig. Chancery, 4 N. 1, Rent, which cites Eton College v. Beauchamp, 1 Cas. Ch. 121.

Clavering v. Westley, 3 P. Will. 402. (b) (a) See Swedesborough Church v. Shivers, 1 C. E. Green, 453; Holmes v. Shepard, 49 Mo. 600. So where rent could not be recovered at law for want of a legal title. Fleming v. Chunn, 4 Jones, Eq. 422.

(b) As to this case however see Walters v. Northern Coal Co., 5 DeG. M. & G. 629, 646, 647. See also Cox v. Bishop, 8 De G. M. & G. 815; Wright v. Pitt, L. R. 12 Eq. 408.

although a grantee of a rent shall not have a remedy in equity merely for the want of a distress, yet if the want of such distress be caused by the fraud or other default of the tenant, there he will be relieved in equity. So if a rent is settled upon a woman by way of jointure, but she has no power of distress or other remedy at law, payment of the rent will be decreed in equity according to the intent of the conveyance. So where a person is a grantee of an entire rent issuing out of a manor, and there are no demesne lands to distrain on, the rent will be decreed in equity.3

684 a. This jurisdiction in matters of rent is asserted upon the general principle that where there is a right there ought to be a remedy; and if the law gives none, it ought to be administered in equity. This principle is of frequent application in equity, but still it is not to be understood as of as universal application as its terms seem to import, for there are limitations upon it. An obvious exception is where a man becomes remediless at law from his own negligence.5 So if he should destroy his own remedy to distrain for rent and debt would not lie for the arrears of rent, he would not be relievable in equity."

684 b. Courts of Equity have in some cases carried their remedial justice further in aid of parties entitled to rent. It is plain enough that they may well give relief where a bill for discovery and relief is filed and the discovery is essential to the plaintiff's case, and the defendant admits the right of the plaintiff to the rent; for in such a case the relief may well be held to be consequent upon the discovery. But where no special ground of this sort has been stated in the bill, and where upon the circumstances there might well have been a remedy at law, Courts of Equity have in some cases gone on to decree the rent when the defendant has by his auswer admitted the plaintiff's right, and no

1 Com. Dig. Chancery, 4 N. 3, Rent; Davy v. Davy, 1 Cas. Ch. 144, 147; Ferris v. Newby, cited 1 Ch. Cas. 147; Ferrers v. Tanner, cited 3 Ch. Cas. 91.

2 Mitf. Eq. Pl. by Jeremy, 115, 116; Plunket v. Brereton, 1 Rep. in Chan. 5; Champernoon v. Gubbs, 2 Vern. R. 382.

8 Duke of Leeds v. Powell, 1 Ves. 171.

41 Fonbl. Eq. B. 1, ch. 3, § 3, note (ƒ), and cases before cited.

5 Francis's Maxims, 6, § 3, p. 25 (edit. 1739); Vincent v. Beverlye, Noy,

R. 82; 1 Fonbl. on Equity, B. 1, ch. 3, § 3.

61 Fonbl. Eq. B. 1, ch. 3, § 3; 1 Roll. Abridg. 375, Pl. 3.

7 Ante, § 71; post, §§ 690, 691, 1483; Story on Eq. Plead. §§ 311, 312, 314,

exception has been taken to the jurisdiction by demurrer or by answer, but simply at the hearing.1

684 c. These latter cases seem to stand upon grounds which, if not unquestionable, may at least be deemed anomalous. The general doctrine of Courts of Equity certainly is, that where the party entitled to rent has a complete remedy at law, either by an action or by distress, no suit will be entertained in equity for his relief; and the cases in which a suit in equity is commonly entertained are of the kind above mentioned; namely, such as stand upon some peculiar equity between the parties, or where the remedy at law is gone without laches, or where it is inadequate or doubtful. It is not enough to show that the remedy in equity may be more beneficial if the remedy at law is complete and adequate, or even to show that the remedy at law by distress is gone if there be no fraud or default in the tenant.5

1 Duke of Leeds v. New Radnor, 2 Bro. Ch. R. 338, 518; North v. Earl of Strafford, 3 P. Will. 184; Holder v. Chambury, 3 P. Will. 256; Livingston v. Livingston, 4 John. Ch. R. 287, 291, 292.

2 Com. Dig. Chancery, 4 N. 3, Rent; Palmer v. Whettenhal, 1 Cas. Ch. 184; Francis's Maxims, 6, § 3, p. 25 (edit. 1739), marg. note; Champernoon v. Gubbs, 2 Vern. 382; Fairfax v. Derby, 2 Vern. 613; Holder v. Chambury, 3 P. Will. 256; Duke of Leeds v. New Radnor, 2 Bro. Ch. R. 338, and Mr. Belt's note, Id. 519; Bouverie v. Prentice, 1 Bro. Ch. R. 200.

3 Ante, § 684. Mr. Fonblanque, in commenting on the case of the Duke of Leeds v. New Radnor, 2 Bro. Ch. R. 338, 519, has said: The case of the Duke of Leeds v. Corporation of New Radnor may in its first impression be thought to have been relievable at law; for though, for the purpose of making it the subject of equitable jurisdiction, the bill alleged that the lands in question had undergone various alterations in their boundaries, yet the defendants by their answer denied that any alteration whatever had taken place in such particulars, and insisted that the plaintiff's remedy was at law. And Lord Kenyon, then Master of the Rolls, appears to have been of such opinion, but he retained the bill for a year. Lord Thurlow, C., however conceived the legal remedy to be doubtful, and was of opinion that the defendants having admitted the plaintiff's right, and the bill having been retained, had done away the objection pressed against the jurisdiction of the court. It may be material to observe that his lordship's opinion went upon the grounds of an admission of the right and the previous retaking of the bill. As to the admission of the right, if it stood alone, that probably would not be thought a sufficient circumstance to give to a Court of Equity cognizance of a matter not properly within its jurisdiction; and with respect to the bill having been retained for a year, the same circumstance occurred in Ryan v. Macmath, 3 Bro. Rep. 15, notwithstanding which the suit was dismissed for want of equity. See also Curtis v. Curtis, 2 Bro. Rep. 620, where this point was very much considered.'

* Com. Dig. Chancery, 4 N. 3, Rent; Attorney-General v. Mayor of Coventry, 1 Vern. 713.

5 Com. Dig. Chancery, 4 N. 3, Rent; Davy v. Davy, 1 Cas. Ch. 144, 147;

685. But in cases of rent where Courts of Equity do interfere, they do not grant a remedy beyond what, by analogy to the law, ought to be granted. As for instance if an annuity be granted out of a rectory and charged thereon, and the glebe be worth less per annum than the annuity, Courts of Equity will make the whole rectory, and not merely the glebe, liable for the annuity.1 But they will not extend the remedy to the tithes, they not being by law liable to a distress. So if a rent be charged on land only, the party who comes into possession of it will not be personally charged with the payment of it unless there be some fraud on his part to remove the stock, or he do some other thing to evade the right of distress.3

686. Before the statute of Anne (8 Anne, ch. 14) it was often necessary to go into a Court of Equity, in cases of a rent seck, for a suitable remedy. But that statute and other subsequent statutes enable the party in all cases, whether the rent be a rent service or a rent seck or a rent charge, to distrain or bring his action of debt.5 The remedy in equity is therefore in a practical sense narrowed, or rather it is less advisable than formerly. Still however (as Mr. Fonblanque has properly remarked) there are cases in which a resort to a Court of Equity may be salutary and perhaps indispensable; as where the premises out of which the rent is payable are uncertain, or where the time or amount of payment is uncertain, or where (as already hinted) the distress is obstructed or evaded by fraud,' or where the rent is issuing out of a thing of an incorporeal nature, as tithes, where no disChampernoon v. Gubbs, 2 Vern. R. 382; Francis's Maxims, 6, § 3, (edit. 1739), marginal note; 1 Fonbl. Eq. B. 1, ch. 3, § 3; Duke of Bolton v. Deane, Prec. Ch. 516.

p.

35

1 Thorndike v. Collington, 1 Cas. Ch. 79; Com. Digest, Chancery, 4 N. 2, Rent.

2 Ibid.;

Thorndike v. Collington, 1 Cas. Ch 79; Francis's Maxims, 6, p. 25 (edit. 1739), in margin.

• Ibid.; Palmer v. Whettenhal, 1 Cas. Ch. 184; Com. Dig. Chancery, 4 N. 3, Rent; 1 Fonbl. Eq. B. 1, ch. 3, § 3, note (k); Davy v. Davy, 1 Cas. Ch. 144, 145; s. P. 3 Cas. Ch. 91.

See 3 Reeves, Hist. of the Law, ch. 21, pp. 316 to 320; Litt. § 218.

5 Stat. 4 Geo. II. ch. 28; 5 Geo. III. ch. 17; 3 Black. Comm. 6; Id. 230 to 233; Bac. Abridg. Rent, K. 6.

• Benson v. Baldwyn, 1 Atk. 598; ante, § 684; Com. Dig. Chancery, 4 N. 1, Rent.

7 Champernoon v. Gubbs, 2 Vern. 382; s. c. Prec. Ch. 126; ante, §§ 684,