Bracton argues that it is no wrong to the lord for the tenant to alienate land held by free and perfect gift, on the ground that the land is bound and charged with the services into whose hands soever it may come.The lord is said to have a fee in the homage and services; and therefore no entry upon the land which does not disturb them injures him. It is the tenement which imposes the obligation of homage, and the same thing is true of villein and other feudal services. The law remained unchanged when feudal services took the form of rent. Even in our modern terms for years rent is still treated as something issuing out of the leased premises, so that to this day, although, if you hire a whole house and it burns down, you have to pay without abatement, because you have the land out of which the rent issues, yet if you only hire a suite of rooms and they are burned, you pay rent no longer, because you no longer have the tenement out of which it comes. It is obvious that the foregoing reasoning leads to the conclusion that a disseisor of the tenant would be bound as much as the tenant himself, and this conclusion was adopted by the early law.The lord could require the services, or collect the rent of any one who had the land, because, as was said in language very like Bracton's, "the charge of the rent goes with the land." 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, 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." 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. 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 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. Nevertheless, if the tenant recognized him, the disseisor would be protected as against persons who could not show a better title. 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. 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.
No such notion was applied to warranties, or to any right which was regarded wholly from the point of view of contract.And when we turn to the history of those remedies for rent which sounded in contract, we find that they were so regarded.The actions of debt and covenant could not be maintained without privity.
In the ninth year of Henry VI. it was doubted whether an heir having the reversion by descent could have debt, and it was held that a grantee of the reversion, although he had the rent, could not have that remedy for it.A few years later, it was decided that the heir could maintain debt, and in Henry VII.'s reign the remedy was extended to the devisee, who, as has been remarked above, seemed more akin to the heir than a grantee, and was more easily likened to him.It was then logically necessary to give assigns the same action, and this followed. The privity of contract followed the estate, so that the assignee of the reversion could sue the person then holding the term. On like grounds he was afterwards allowed to maintain covenant. But these actions have never lain for or against persons not privy in estate with the lessor and lessee respectively, because privity to the contract could never be worked out without succession to the title. However, all these niceties had no application to the old freehold rents of the feudal period, because the contractual remedies did not apply to them until the time of Queen Anne. The freehold rent was just as much real estate as an acre of land, and it was sued for by the similar remedy of an assize, asking to be put back into possession.
