only transfers the legal estate in the rent to the first 4 ch. 1. f. 4. cestui que ufe. And, therefore, a conveyance to A. Vide Tit. 12. and his heirs, to the ufe and intent that B. and his heirs may receive a rent out of the eftate, gives B. the legal fee of the rent; fo that, if it is afterwards declared that B. and his heirs are to ftand feifed of the rent to uses, the intended ceftuis que ufe take only trust or equitable eftates. Chaplin v. 3 P. Wms. S 26. Lady Hanby conveyed divers lands, to the use and intent that certain trustees, in the deed named, should receive and enjoy a rent-charge of 30%. 229. per annum to them and their heirs; and then the faid rent was to be to the use of Porter Chaplin in tail male, remainder over. Porter Chaplin died, leaving iffue Sir John Chaplin ; who married the plaintiff, and died without iffue. One of the questions was, whether Lady Chaplin was dowable of this rent. Lord Chancellor Talbot was of opinion, that Sir John Chaplin, having only a truft eftate in this rent, his widow was not dowable of it. § 27. A rent may be granted in remainder, after a limitation of it to a perfon for life: and, if a rent were granted to A. for the life of B. remainder over, though A. fhould die in the life-time of B. fo that the particular estate determined in interest as to the perception of the profits; yet, inafmuch as the terre May be granted in Salter v. Yelv. 9, 10 tenant during this time held the land discharged, it was fufficient to fupport the remainder. $ 28. Mr. Fearne doubts, whether this holding of the land discharged would have fupported a contingent remainder; but fays, that at this day there can be no room for a question of that nature: for, since the statutes 29 Cha. 2. c. 3. and 14 Geo. 3. c. 2c., the rent is holden to continue in the representatives of the grantee, dying in the life-time of the cestui que vie. S 29. A grant of a rent to A. and the heirs of his body, remainder to B. and his heirs, has been held good. For, though it was objected, that there could be no remainder of that whereof there was no reverfion; yet it was held by Lord Holt, that there may be a remainder of a rent de novo: for the intent of the party gives it first a being for the whole, and then the leffer eftates are carved out of it. § 30. A rent de novo may be granted, fo as to commence in futuro: for this is not like the cafe of lands, where the livery muft carry the freehold immediately; and where the abeyance, for want of distinguishing in whom the freehold is, may be of prejudice to the rights of others. But the grant of a rent de novo is not attended with the like inconvenience: for no man can have a precedent right to a thing, which is created by the grant itself, $ 31. A rent § 31. A rent in effe, or already created, cannot Gilb. 60. however be granted to commence in futuro, because to fuch a rent there may be a precedent title; and, therefore, fuch a grant is not good: for fuch freeholds, by being thus fplit and fevered, do hide the person in whom the right is; and, therefore, the party, that has right, will not be able to discern against whom to bring his præcipe for the recovery of it. § 32. A rent de novo may be limited, fo as to ceafe May ceafe for for a time, and afterwards to revive. Thus, where a rent de novo was granted, to a man and his heirs, with a provifo that, if the grantee died, his heir being within age, then the rent fhould cease during his minority; and the grantee died leaving his heir within age, the wife of the grantee brought a writ of dower against the terre-tenant. And it was held in parliament, that the demandant fhould have execution against the heir, when he came of full age. $ 33. Where a person is once seised or poffeffed of a rent he cannot afterwards be diffeifed or difpoffeffed thereof: because a rent, being merely a contingent right, collateral to, though iffuing out of, lands; it cannot be devested. For, although a perfon, who has a rent, be not in the actual receipt and enjoyment of it, yet by non-ufer only he does not ceafe to have a vefted estate or intereft therein, fo that he ftill continues to be in poffeffion: for, a rent being a mere creature a time. Fitz. Dower, A Rent canvefted. not be de 5 Rep. 124 a. Hawk. P. C. Ch. 64. f. 45. creature of the law, it is always confidered to be in the poffeffion of him, whom the law adjudges to have a right to fuch poffeffion. § 34. It fhould, however, be observed, that a rent may be devested by a diffeifin: and the different modes, by which a man might be diffeifed of a rent, Sec. 237.240. are ftated by Littleton; becaufe, when he wrote, an affife was in moft cafes the only remedy for the recovery of a rent; and it only lay, where the party was diffeifed. But diffeifins of incorporeal hereditaments are only at the election and choice of the party injured; who, for the fake of more easily trying the right, is pleased to fuppofe himself diffeifed: for, as there can be no actual difpoffeffion, he cannot be 10 Rep. 97 a. compulfively diffeifed of any incorporeal heredita 3 Comm.170. Ten. 104. How a Rent may be for. feited, I Init. 251. ment. $ 35. The doctrine, that a rent cannot be devested, extends even to the cafe, where rent is paid to a perfon, who has no title to it: for it is faid by Lord Chief Baron Gilbert, that if A. is feifed of a rentcharge, and the tenant of the land pays it to another, this does not devest A. of his right; because the wrongful payment of A.'s tenant cannot alter his right it is therefore a payment in his own wrong, and it ftill remains in arrear to A. This feems the ftrongest cafe that can be put upon the fubject. § 36. Lord Coke fays, that a particular eftate of any thing, that lies in grant, cannot be forfeited by any any grant in fee, by deed: as, if tenant for life or years of a rent, grants the fame by deed, this is no forfeiture of his eftate; for nothing paffes thereby, but that, which lawfully may pafs. § 37. But a particular estate in a rent, or in any other incorporeal hereditament, may be forfeited by matter of record; of which an account will be given Tit. 35in a fubfequent title. Fine. |