If the conveyance be executed during the existence of a tenancy, the purchaser of the reversion thereupon becomes entitled to the accruing (m) and future rent, and may recover it by action, or (after giving notice of the conveyance) by distress (n); but he cannot recover arrears due before the conveyance (o), or subsequent rent which the tenant, in ignorance of the conveyance, has paid to the vendor (p): so, it would appear, the purchaser of a part only of a rent-charge, may, after conveyance, distrain for his proportionate part (q). The Act for the apportionment of rents (r) does not appear to apply to the case of a sale, or, as between a vendor and purchaser, to affect the latter's right to accruing rents (s).

So, if the tenancy be under a lease by deed (t) for a term which is subsisting at the date of the conveyance, the purchaser of the reversion may sue upon breaches of covenants which occurred before the conveyance (u); but not, it would seem, if the lease be determined before the conveyance, although the tenancy continue (w): his right to sue exists although he have purchased the reversion only of part of the demised premises (x); but he then cannot enter for conditions broken (y); but such entry may be made by the purchaser of part of the reversion of all the premises; e. g., if a termor underlet to A., and then assign to B. the original term wanting one day, B. may enter for condition broken by A. (z): and in none of the above cases is it necessary that the tenant should attorn to (a), or otherwise acknowledge the title of, the purchaser: where the lease is by writing not under seal, the right to sue upon it as a contract does not pass with the reversion, and the lessor may, after conveying the reversion, sue the lessee in respect of breaches of agreement, (e. g. to repair the premises,) committed during the tenancy but subsequently to the conveyance of the reversion (b); but the assignee of the reversion may maintain assumpsit against the tenant for use and occupation (c).

Purchaser's right to rent, if property in lease, etc.

And to sue for breach of covenant.

As to reentry.

(m) Flight v. Bentley, 7 Sim. 149.

(n) Moss v. Gallimore, Doug. 266, although the rent was due at the date of the notice.

(o) Flight v. Bentley, 7 Sim. see p. 151.

(p) 4 Anne, c. 16, s. 10; Birch v. Wright, 1 Durn. & E. see 385.

(q) Rivis v. Watson, 5 M. & W. 255.

(r) 4 & 5 Will. IV. c. 22.

(s) See and consider Browne v. Amyot, 3 Ha. 173.

(t) Standen v. Christmas, 10 Q. B. 135.

(u) Sugd. 219.

(w) See Johnson v. St. Peter's, Hereford, 6 Nev. & M. 106, 115.

(x) Twynam v. Pickard, 2 B. & Ald. 106.

(y) Wright v. Burroughes, 4 D. & L. 438; see p. 448.

And, under a recent Act, where the immediate reversion on a lease is surrendered or merged, the next estate is to be deemed the reversion as respects both rights and liabilities (d).

And where the purchaser is himself lessee, the execution of the conveyance at once determines all the covenants in the lease which subsisted between himself and the vendor as lessee and lessor (e).

It has been held, that the mere retention by the vendor, of the actual possession of the property, subsequently to the execution of the conveyance, will not subject him to an action by the purchaser for use and occupation (f).

We have seen (g) that, under the old law, where a testator, having entered into a contract for purchase which was not binding on the vendor, devised the estate, such devise was inoperative on any interest which he subsequently acquired in the property; although a case of election might, in some cases, be raised against the heir: so, also, if, having contracted for an estate, he devised it, and then took a conveyance in terms inconsistent with the contract, the devise was thereby revoked; but that a devise contained in a Will coming within the provisions of the recent Act of 1 Vict. c. 26, will pass to the devisee the rights of the testator, whatever they may be, under the subsequent conveyance. Next estate is now the reversion.

Purchaser's rights and liabilities, as lessee, cease on conveyance.

Vendor retaining possession, not liable for use and occupation.

Purchaser's will, how affected by conveyance.

(z) S. C.

(a) See 4 Anne, c. 16, sect. 9; Doug. 269.

(b) Bickford v. Parson, 5 C. B. 920; Standen v. Christmas, 10 Q. B. 135.

(c) S. C.

(d) 8 & 9 Vict. c. 106, a. 9. (e) 1 Bli. 69.

(f) Tew v. Jones, 13 M. & W. 12.

(g) Supra, 126.

As we have already seen, even in the case of a mere equitable estate, a conveyance is necessary to enable the purchaser to enforce, as against third parties, any equities attaching to the property (h).

And we may here remark, that if a bond fide sale and absolute conveyance are accompanied by a power reserved to the vendor to repurchase the property, this will not turn the transaction into a mortgage, if such does not appear to have been the intention of the parties; and the test of such intention seems to be the existence or nonexistence of a debt from the original vendor in respect of the sum named as the price for such repurchase: if there is no debt there is no mortgage (i).

Conveyance of equitable estate, why requisite.

Conveyance with power of redemption,-when not a mortgage.

(h) See Tasker v. Small, 3 M. & C. 70; per Lord Cottenham, supra, p. 115.

(i) See Perry v. Meddowcroft, 4 Beav. 197, affirmed, 203; Williams v. Owen, 5 M. & C. 303.