Then as to the right to the rent. Rent was treated in early law
as a real right, of which a disseisin was possible, and for which
a possessory action could be brought. If, as was very frequently
the case, the leased land lay within a manor, the rent was parcel
of the manor, /4/ so that there was some ground for saying that
one who was seised of the manor, that is, who possessed the lands
occupied by the lord of the manor, and was recognized by the
tenants as lord, had the rents as incident thereto. Thus Brian,
Chief Justice of England under Henry VII., says, "If I am
disseised of a manor, and the tenants pay their rent to the
disseisor, and then I re-enter, I shall not have the back rent of
my tenants which they have paid to my disseisor, but the
disseisor shall pay for all in trespass or assize." /5/ This
opinion was evidently founded on the notion that the rent was
attached to the chief land like an easement. Sic fit ut debeantur
rei a re. /6/
Different principles might have applied when the rent was not
parcel of a manor, and was only part of the reversion; that is,
part of the landlord's fee or estate out of [390] which the lease
was carved. If the lease and rent were merely internal divisions
of that estate, the rent could not be claimed except by one who
was privy to that estate. A disseisor would get a new and
different fee, and would not have the estate of which the rent
was part. And therefore it would seem that in such a case the
tenant could refuse to pay him rent, and that payment to him
would be no defence against the true owner. /1/ Nevertheless, if
the tenant recognized him, the disseisor would be protected as
against persons who could not show a better title. /2/
Furthermore, the rent was so far annexed to the land that whoever
came by the reversion lawfully could collect it, including the
superior lord in case of escheat. /3/ Yet escheat meant the
extinction of the fee of which the lease and rent were parts, and
although Bracton regarded the lord as coming in under the
tenant's title pro herede, in privity, it was soon correctly
settled that he did not, but came in paramount. This instance,
therefore, comes very near that of a disseisor.
Services and rent, then, were, and to some extent are still,
dealt with by the law from the point of view of property. They
were things which could be owned and transferred like other
property. They could be possessed even by wrong, and possessory
remedies were given for them.
Public-domain text, read in full here on John Shaqi.
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