Upon the purchase of purely incorporeal hereditaments, the general rule as to the title required to be shown is the same as upon the purchase of land, that is to say, if the incorporeal hereditament be sold in fee and under an open contract, forty years' title, commencing with a good root of title, must be shown (d). This applies equally to the sale of a seigniory, a rent-charge, a profit a prendre, a franchise, or an easement. The exceptions are those already noted (e) of the sale of tithes or other property held under a grant from the Crown, and of an advowson. Upon a contract to grant in fee a new incorporeal hereditament to be exercisable over or issue out of the grantor's land, such as a right of way or a rent-charge, the same title must be shown to all the land, which will be subject to the grant, as upon a sale thereof (f).

Sale of purely incorporeal heredita ments.

(a) Re Walker; 1908, 2 Ch. To.".; and see above, pp. 369, 370 and

(b) Be Gibbon, 1909, 1 Oh. 367. (c) See authorities cited in note (z), above, p. 432; .A. G. v. Mangles, 5 M. & W. 120; A.-G. v. Simcox, 1 Ex. 749; Adv.-Gen.

v. Smith, 1 Macq. 760. Cf. Watson v. Black, 16 Q. B. D. 270.

(d) See above, pp. 98, and n. (u), 100, 106, 107; Re Earnshaw Wall, 1894, 3 Oh. 156, 158.

(e) Above, pp. 97, 101.

W

Contract to grant an incorporeal hereditament de novo.

On the sale of a rent-charge in fee, besides the documentary title, evidence must be given that the vendor is in actual receipt of the rent sold, as in the case of a sale of ground rent (g). This is the more necessary on the sale of a rent-charge, in that such a rent may be barred and extinguished after twelve years' non-payment under the Statute of Limitations (h.). The purchaser should inquire of the terre-tenant whether he pays the rent in question to the vendor (i). Purchasers of perpetual rents, whether rents service, rents-charge or rents seek, should not forget that a rent in fee, not being a tithe rent-charge or a rent reserved on a sale or lease or made payable under a grant or licence for building purposes, is redeemable on the requisition of any person interested in the land, out of which the rent issues, at an amount of money to be certified by the Board of Agriculture (k). With regard to the remedies to which a purchaser of a rent in fee will become entitled, rents seek are of course now recoverable by distress equally with rents-charge (l); owners of rents have, since te abolition of real actions, been allowed a remedy by suing the terre-tenant personally (m); and they may apply to a Court of Equity to order any arrears of the rent to be raised by sale or mortgage of the land, out of which it issues, the granting of such relief being discretionary (n). Where the rent sold is a rent-charge in fee created on a grant of land for building purposes in consideration of a rent-charge, it will of course be borne in mind that any covenant contained in the deed of grant that the grantee, his heirs and assigns will pay the rent or build on the land is only a personal covenant and will not run with the land, either at law or in equity, so as to be enforceable against the grantee's assigns (o). Where on such a grant the rent-charge and the grantee's estate have been limited by way of use to be executed by the Statute of Uses (p), and there has been a proviso allowing the grantor, his heirs or assigns, on non-payment of the rent or breach of covenant to re-enter and hold the land charged in fee, it appears, according to modern doctrine (q), that the right of re-entry is void, at least as regards the grantor's heirs and assigns, unless it were so limited that it must necessarily arise within the period allowed by the rule against perpetuities. But a power given on such a grant of a rent-charge in fee for the grantee, his heirs or assigns, to enter on the land charged, in case of non-payment of the rent, and hold the land until all arrears of the rent and all expenses shall have been discharged, appears to stand upon a different footing. Such a power is regarded as remedial only and as being part of the estate which the grantee has in the rent; and whether the power be conferred in express words or by virtue of the 44th section of the Conveyancing Act of 1881 (r), there appears to be no good reason for supposing that the same is invalid, if not limited to arise within the period allowed by the rule against perpetuities (s). Here the reader may be reminded that, before the 13th of August, 1859, a release by the owner of a rent-charge of part of the lands, out of which the rent issued, had the effect of entirely extinguishing the rent-charge (t). Since then, if such a release be made, the right only to recover any part of the rent-charge out of the lands released is barred; and the lands not included in the release remain liable, not to the whole rent-charge, but only to a part thereof proportionate to their value (u). It appears, however, that this alteration of the law does not extend to a rent seek, which seems to remain on the same footing, in respect of apportionment, as a rent-charge stood at common law (x).

Rent-charge.

Perpetual rents, when redeemable.

Remedies of owners of rents.

(f) Beddington v. Atlee, 35 Ch. D. 317. 329, 331: Re Stewart, 41 Ch D. 494,506.. The principle of this is the same which was applied in deciding that one. who contracted to grant a lease for years, was bound to show a good title to the freehold of the lands to be leased: above, p 97, n. (m); Fildes v. Hooker, 2 Mer. 421.

(g) Above, p 398.

(h) See James v. Salter, 3 Ring. N. C. 54 4; Grant v Ellis, , 9 M. & W. 113; De Beauvotr v. Owen, 5 Ex. 166; Dean of Ely v. Bliss, 2 De G. M. & G. 459, 472; Irish Land Commrs. v. Grant, 10 App. Cas. 14. 26. 27: Ho'itt v. Harrington, 1893, 2 Ch. 497, 504, 507; Shaw v. Crompton, 1910, 2 K. B. 370. 376.

(i) See above, p. 39i9.

(k) Stats 44 & 45 Vict. c. 41, s. 45; 52 & 53 Vict. o. 30, s. 2.