The Orphans Legacy, Part 3 · Chapter 15
CHAP. XV. Touching Deviſes of Rents.
1. Rents Iſſuing out of Lands, are as Deviſable as the Land it ſelf, ſo as it be the Teſtators own Land.
2. A Grantee may not Deviſe the Rent, which he hath only for another Mans Life.
3. Rent to be Iſsuing out of a Common, is not Deviſable.
4. Several ways how Rents may be Deviſed.
5. The Deviſe of the Reverſion of a Rent upon a falſe ſuggeſtion, is a void Deviſe.
1. A Seigniory, Rent, or the like, is Deviſable as Land is, and will paſs without the Atturnment of the Tenant. aPerk. Sect. 538. Lit. Sect. 585, 586. Dyer 253. 140. Fitz. N. B. 121. Go. ſup. Lit. III. 8. 83. 3. 33. Brow. 1. part. 75, 76.So that a Man may Deviſe a Rent de novo iſſuing out of Land, or a Rent iſſuing out of Land that is in eſſe before. And therefore if one make a Leaſe for Life or Years, Rendring Rent, the Leſſor may Deviſe this Rent. Likewiſe if a Rent be granted to one and his Heirs, the Grantee may Deviſe this Rent. Alſo a Man that is Seiſed of Land in Fee, may Deviſe any Rent out of it at his pleaſure. But a Man cannot Deviſe a Rent out of another Mans Land that is none of his own, nor out of that which he hath not; and therefore if one Deviſe Twenty Pounds to be iſſuing out of his Mannor of Dale, when in Truth he hath no ſuch Mannor; that Deviſe is void.
2. If Rent be granted to one Man for the life of another, it ſeems the Grantee may not Deviſe this Rent, but that on failure of other diſpoſal thereof in the Grantees life Time the Terre-tenant ſhall hold it as an Occupant. bDyer. 253.And if one Deviſe a Rent of any certain Sum out of his Land to be paid quarterly, and ſay not how long the Rent ſhall continue; this is but an Fſtate for life of that Rent.cCo. ſup. Lit. 147. 8. 85. Bro. 2. part. 74, 75.
3. If a Man Seiſed of a Common, granteth a Rent out of the Land, although that the Land be Deviſable, yet the Grant is void, and by Conſequence the Deviſe.dDyer in St. Wills. Sect. 4. §. 15.
4. If a Tenant for life make a Leaſe for Years, Rendring Rent, and after the Tenant for life Surrender to the Leſſor all his Right, and then the Leſſor Deviſe this Rent, this is a good Deviſe during the life of the Leſſee for life. Or if a Man make a Leaſe for life, Reſerving Rent to him and his Heirs, and the Leſſor Deviſe this Rent; this alſo is a good Deviſe of the Rent; otherwiſe it is, if he Reſerve the Rent to him and his Aſſigns. Or if a Leſſee for Term of Ten Years, make a Leaſe over for Term of 40. Years, and the Leſſor confirm the Eſtate, Reſerving a Rent to him and his Heirs, and after by his Will Deviſe the Rent in Fee; this alſo is a good Deviſe of the Rent after the Ten Years, but not before.eDyer. ibid. Sect. 8. §. 29. 34. 37.
5. A Man Seiſed of a Rent, makes a Deed reciting that whereas I. S. holdeth the ſaid Rent of his Grant for Term of life, he grants the Reverſion of the ſaid Rent after the deceaſe of I. S. to the Grantee and his Heirs in Fee; and in Truth I. S. had nothing in the Rent; the Grantee Deviſeth this Rent; this is no good Deviſe of the Rent. fIbid. §. 8.If the Husband make a Leafe for life to the Daughter and Heir apparent of his Wife being Covert, Rendring Rent; and the Wife-Mother die, and the Husband Deviſe the Rent; this is a void Deviſe of that Rent.gIbid. §. 32. Mich. 44, & 45. Eliz. B. R. Salters caſe. Yelv. Rep.
In an Action of the Caſe upon Trover, the Defendant juſtified and pleaded Rent granted to A. his Executors and Aſſigns for the life of B. out of Black-acre, and ſhewed that A. was dead, and that he as Adminiſtrator to A. diſtrayned for the Rent on Black-acre in Arrears after the death of A. and that he is to have it during the life of B. It was Adjudged, That the juſtification was not good either for matter or manner; for that after the death of A. the Rent determined, and cannot come to his Executors or Adminiſtrators; for it was not a Thing Teſtamentary, but a Frank-tenement, and nothing in the Grant to A. and his Heirs for the others life.
If Rent be granted out of Land Deviſable by Cuſtom, the 22. Aſſ. 78. Adjudg'd. Perk. 8. 135. Roll. Abr. tit. Deviſe, E.Rent may be Deviſed within the Cuſtom, for it is of the ſame nature with the Land.