come into operation under Lord Cranworth's Act, it will Note to not be affected by this Act. See sect. 71, sub-sect. (2).

X.-RENTCHARGES AND OTHER ANNUAL SUMS.

S.43,ss.4.

for re

44.-(1.) Where a person is entitled to receive Remedies out of any land, or out of the income of any laud, covery of any annual sum, payable half-yearly or otherwise, annual whether charged on the land or on the income of sums charged the land, and whether by way of rentcharge or on land. otherwise, not being rent incident to a reversion, then, subject and without prejudice to all estates, interests, and rights having priority to the annual sum, the person entitled to receive the same shall have such remedies for recovering and compelling payment of the same as are described in this section, as far as those remedies might have been conferred by the instrument under which the annual sum arises, but not further.

entry, &c.

This section seems designed to avoid the necessity of Powers of inserting in settlements powers of distress and entry, or distress, of creating terms to secure jointures and other annual payments out of the income of land. It applies to annual payments (other than rent incident to a reversion) charged upon land or upon the income of land.

As to the distinction between annuities charged on land and on the income of land, and the remedies of annuitants, see Phillips v. Gutteridge, 3 D. J. & S. 332 ; Jarman on Wills, vol. II., p. 306, note (ƒ); Seton on Degrees, 963; and the recent cases of Gee v. Mahood, 5 App. Cas. 588, and Wormald v. Muzeen, 17 Ch. D. 167 (reversed on Appeal, 29 W. R. 795).

66

charged Powers

It seems probable that the words in sub-sect. 1, on the land or on the income of the land," mean charged on only affect the income in such a way as to charge the land. Unless the land charged. the land is charged the powers given by the following

H

Note to sections cannot operate, for they are all confined to "the S.44,ss. 1. land charged."

(2.) If at any time the annual sum or any part thereof is unpaid for twenty-one days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears thereof, and all costs and expenses occasioned by non-payment thereof, may be fully paid.

The powers given by this section are powers to enter and distrain if the annual sum is in arrear for twentyone days.

(3.) If at any time the annual sum or any part thereof is unpaid for forty days next after the time appointed for any payment in respect thereof, then, although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possession of and hold the land charged, or any part thereof, and take the income thereof, until thereby or otherwise the annual sum and all arrears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by nonpayment of the annual sum, are fully paid; and such possession when taken shall be without impeachment of

waste.

Power to take possession in case of nonpayment for forty days.

(4.) In the like case the person entitled to the Sect. 44. annual charge, whether taking possession or not, may also by deed demise the land charged, or any part thereof, to a trustee for a term of years, with or without impeachment of waste, on trust, by mortgage, or sale, or demise, for all or any part of the term, of the land charged, or of any part thereof, or by receipt of the income thereof, or by all or any of those means, or by any other reasonable means, to raise and pay the annual sum and all arrears thereof due or to become due, and all costs and expenses occasioned by nonpayment of the annual sum, or incurred in compelling or obtaining payment thereof, or otherwise relating thereto, including the costs of the preparation and execution of the deed of demise, and the costs of the execution of the trusts of that deed; and the surplus, if any, of the money raised, or of the income received, under the trusts of that deed shall be paid to the person for the time being entitled to the land therein comprised in reversion immediately expectant on the term thereby created.

Power in the like case (i.e., presumably nonpayment for forty days) to demise the land and pay the annuity, &c., by mortgage or sale of the term thus created.

In sub-sects. (2), (3), and (4) the powers are given to Arrears. recover all arrears, but it is presumed that this will not prevent the statutes of limitation from operating.

It may be observed that a covenant for payment is not implied by this section, and the expression of a contrary intention will render the section inapplicable.

(5.) This section applies only if and as far as a contrary intention is not expressed in the instru

Sect. 44. ment under which the annual sum arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

Redemp

(6.) This section applies only where that instrument comes into operation after the commencement of this Act.

45.—(1.) Where there is a quitrent, chieftion of rent, rentcharge, or other annual sum issuing out quitrents and other of land (in this section referred to as the rent), perpetual the copyhold commissioners shall at any time, on the requisition of the owner of the land, or of any person interested therein, certify the amount of money in consideration whereof the rent may be redeemed.

charges.

Redemp

This is an extension of some of the powers of the copytion of hold commissioners under 15 & 16 Vict. c. 51, and 21 & 22 quitrents Vict. c. 94, to lands which are not copyholds but holden of perpetual a manor, or which are otherwise subject to a perpetual charges. rentcharge.

and other

The owner of the

(2.) Where the person entitled to the rent is absolutely entitled thereto in fee simple in possession, or is empowered to dispose thereof absolutely, or to give an absolute discharge for the capital value thereof, the owner of the land, or any person interested therein, may, after serving one month's notice on the person entitled to the rent, pay or tender to that person the amount certified by the commissioners.

By sub-sect. (2) the operation of the section seems to be confined to cases where the owner of the rent is entitled to

the rent in fee simple in possession, or empowered to dispose thereof absolutely, or to give a discharge for the capital value of the rent.

Note to S.45,ss. 2.

rent must be abso

entitled.

(3.) On proof to the commissioners that pay- lutely ment or tender has been so made, they shall certify that the rent is redeemed under this Act; and that certificate shall be final and conclusive, and the land shall be thereby absolutely freed and discharged from the rent.

(4.) Every requisition under this section shall be in writing; and every certificate under this section shall be in writing, sealed with the seal of the commissioners.

(5.) This section does not apply to tithe rentcharge, or to a rent reserved on a sale or lease, or to a rent made payable under a grant or license for building purposes, or to any sum or payment issuing out of land not being perpetual.

By sub-sect. 5 the section is not to apply to tithe rent- Section charge, to rent reserved on a sale or lease, or made payable not to under a grant for building purposes, or to any payment not perpetual.

These restrictions will leave but a narrow field for the operation of this section; especially if it be incumbent on the person making the requisition to show that the annual sum issuing out of his land was not reserved upon a sale of some kind.

(6.) This section applies to rents payable at, or created after, the commencement of this Act.

The section applies to rents created before as well as after the 31st December, 1881.

(7.) This section does not extend to Ireland.

apply to tithes, &c.