wise, not being rent incident to a reversion." The remedy of distress, therefore, is now attendant upon every species of rent, either by common law, or under an express clause of distress, or by statute. of rent service. Rent service is said to be reserved, as distinguished from Reservation a specific part of the land which may be excepted. In technical language an exception refers to a part of the tenement granted and of a thing in esse, and it leaves the part excepted in the grantor as before; a reservation of rent creates a new right which did not exist before, issuing out of the tenement to the use of the grantor (1).—Rent By deed. service may be reserved by any conveyance that is effective to pass an estate, leaving a reversion in the grantor to which tenure may be incident. It may be reserved upon a deed of grant operating at common law, or under the Statute of Uses, or by way of appointment under a power, or upon a grant of a reversion or remainder, or upon a lease for life or for years, or upon a parol lease where such a lease is effective (m). It may be reserved by deed poll, for when the grantee.accepts the deed, he agrees to the rent, and the rent is reserved by the words of the grantor and not by the grantee (n).-It may be reserved upon a By will. devise by will of a particular estate; a rent service is thereby created which is incident to the reversion, and passes with it to the heir or devisee of the testator (0). But in the case of two independent devises of the land and of the rent, it is not rent service but a rent seck; unless charged upon the land by a special clause of distress, which would make it a rent charge (p). Rent service, properly so called, can be reserved only Reservation to the grantor or lessor of the particular estate out of to stranger. which it issues, who retains the reversion to which the (1) Co. Lit. 47 a; Perkins, ss. 625, 626; Doe v. Lock, 2 A. & E. 743. (m) Co. Lit. 144 a; post, p. 376. (n) Co. Lit. 143 b. (0) Machel v. Danton, 2 Leon. 33. Reservation upon grant in fee simple. Grant of particular estate. Reservation of rent upon rent is incident; it cannot be reserved to a stranger to the estate (2). Payment of rent to a stranger may be imposed as the condition of an estate, with a right of re-entry for breach of the condition; but it is not properly a rent, nor can the stranger take advantage of the condition by entry (). At common law, before the Statute of Quia Emptores, 18 Edw. I. c. 1, “if a man had made a feoffment in fee simple, by deed or without deed, yielding to him and to his heirs a certain rent, this was a rent service, and for this he might have distrained of common right; and if there were no reservation of any rent, nor of any service, yet the feoffee held of the feoffor by the same service as the feoffor held of his lord next paramount" (s). After the statute, a feoffment in fee created no new tenure to the feoffor, but the feoffee held the land immediately of the lord next paramount by force of the statute; and if a new rent was expressed to be reserved, it was not rent service, nor was there any right of distress without an express clause to that effect, making it a rent charge (t).—The statute applied only to the alienation of the whole fee; and if a grant was made for a particular estate, in tail or for life, rendering a certain rent, the reversion remaining in the grantor; or if several particular estates were granted in succession, leaving a reversion in the grantor, the rent was rent service and attended with the right of distress (u). If the grant was made for a particular estate with remainder over in fee, leaving no reversion in the grantor, the grantees held of the superior lord by force of the statute; the rent reserved was not rent service and there was no right of distress, without an express clause (r). If a lease be made for a term of years, reserving rent, it is a rent service, and the lessor may distrain at common lease for law (w). By the Statute of Frauds, 29 Car. II. c. 3, s. 1, years. it is required that all leases should be made in writing and signed; and by 8 & 9 Vict. c. 106, s. 3, it is required that leases required to be in writing shall be made by deed. But the Statute of Frauds, s. 2, excepts "all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount unto two-third parts at the least of the full improved value of the thing demised." Therefore in leases by parol within the exception rent service may be reserved, as in a lease at common law.— If a lessee for a term of years makes an underlease for a Underlease. less term leaving a reversion, however small, and reserving a rent, it is a rent service at common law with a right of distress (x). And a tenant from year to year, underletting for a term of years, has a reversion with right of distress (y). But upon an assignment of a term of years, leaving no reversion in the assignor, but reserving a rent, there is no tenure and consequently no rent service strictly so called, nor any right of distress at common law; and an underlease for the whole term is equivalent to an assignment in this respect (z). will. under agree Rent may be reserved on a tenancy at will and the Tenancy at lessor may distrain for arrears; but it is not rent service strictly so called, because there is no tenure (a).—Where, Tenancy as frequently happens, a tenant enters and takes possession ment for under a mere agreement for a lease, not operating as a legal demise, he was considered at common law to be in the position of a tenant at will until a lease was executed, and if there was a fixed rent reserved it was recoverable by (w) Lit. s. 214. (x) Wade v. Marsh, Latch, 211. (y) Tenterden, C. J., Curtis v. Wheeler, Mood. & M. 493. Per cur. Oxley v. James, 13 M. & W. 214. (z) Parmenter v. Webber, 8 Taunt. 593; Thorn v. Woolcombe, 3 B. & Ad. 586; Precce v. Corrie, 5 Bing. 24; Pollock v. Stacy, 9 Q. B. 1033; (a) Lit. s. 72; Co. Lit. 57b; lease. Attornment of mortgagor as tenant to mortgagee. distress. But upon payment of rent a tenancy from year to year was implied in law (b). The Court of Chancery would decree specific performance of the agreement by the execution of a lease according to its terms; and the rent and remedies would then be regulated by the terms of the lease. Under the Judicature Acts, the same remedies are given in all Divisions of the Court; therefore "a tenant holding under an agreement for a lease of which specific performance would be decreed, stands in the same position as to liability as if the lease had been executed. He is not since the Judicature Act a tenant from year to year, he holds under the agreement, and every branch of the Court must give him the same rights. There are not two estates as there were formerly, one estate at common law, by reason of the payment of the rent, from year to year, and an estate in equity under the agreement. There is only one Court and the equity rules prevail in it. The tenant holds under an agreement for a lease; he holds, therefore, under the same terms in equity as if a lease had been granted" (c). It is usual in mortgages, for securing punctual payment of the interest upon the mortgage debt, to insert an attornment clause, by which the mortgagor attorns or acknowledges himself to be tenant to the mortgagee at a certain rent, equal to or greater than the amount of the interest. The tenancy thus created carries with it the power of distress, with all the usual rights and incidents, whether of the common law or statutes, of a distress for rent service (d). Where the attornment was made to a receiver of the mortgaged estate, it was held effectual to entitle him to distrain under it (e). In the case of a second mortgage, operating only upon the equity of redemption, (b) Ante, Vol. I. pp. 201, 206; Anderson v. Midland Ry Co., 3. E. & E.614; 30 L. J. Q. B. 94: see Vincent v. Godson, 4 D. M. & G. 546. (c) Jessel, M. R., Walsh v. Lonsdale, L. R. 21 C. D. 14; 52 L. J. C. 2. See Coatsworth v. Johnson, 55 L. J. (d) Kearsley v. Philips, L. R. 11 Q. B. D. 621; 52 L. J. Q. B. 581. (e) Jolly v. Arbuthnot, 4 D. & J. 224; 28 L. J. C. 547. though there can be no legal tenancy, the attornment clause is effectual by way of contract or estoppel, and enables the mortgagee to distrain (f), and a similar attornment clause may be inserted in successive mortgages (g). But such attornment is within the Bills of Sales Act, 1878, s. 6, which enacts that it "shall be deemed to be a bill of sale of any personal chattels which may be seized or taken under such power of distress" (h). The rent reserved between mortgagor and mortgagee in an attornment clause, if greater than necessary to secure the mortgage debt and interest, may operate in fraud of the bankruptcy law, and therefore be void against other creditors (i). mortgagor. If a mortgagor, remaining in possession after conveying Lease by his title to the mortgagee, make a lease reserving a rent, the lessee entering under it cannot dispute his title, and the mortgagor has a reversion by estoppel to which the rent is incident with the right of distress, so long as the possession of the lessee continues. The lease is, in general, wholly void as against the mortgagee, who may enter at any time and evict the lessee; or he may give notice to the tenant to pay the rent to him, which the tenant may accept (j). But the mortgagee has no claim against the mortgagor for rents or profits received whilst he remains in possession (k).—By the Conveyancing and Law of Property Act, 1881, 44 & 45 Vict. c. 41, s. 18, a mortgagor in possession has now a limited statutory power of making leases valid against the mortgagee and all other incum (f) Morton v. Woods, L. R. 4 Q. B. 293; 38 L. J. Q. B. 81. (g) Ex parte Punnett, Re Kitchin, L. R. 16 C. D. 226; 50 L. J. C. 212. (h) Re Willis, Ex parte Kennedy, L. R. 21 Q. B. D. 384; see Hall v. Comfort, L. R. 18 Q. B. D. 11; 56 L. J. Q. B. 185. (i) Ex parte Williams, L. R. 7 C. D. 138; 47 L. J. B. 26; Re Stockton Iron Co., L. R. 10 C. D. 335; 48 L. J. C. 417; Ex parte Jackson, L. R. 14 C. D. 725; Ex parte Voisey, (j) Ante, Vol. I. p. 290; Alchorne (k) Yorkshire Building Co. v. |