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men from their own carelessness or ignorance. The former they must cure; the latter they must provide against by asking counsel" (25).
A general covenant to repair, or to keep the premises in repair merely requires him to keep the premises in the condition in which they are at the time of the lease, and he is not bound to put them into tenantable condition, nor make repairs or changes that may be required by the public authorities, unless the lease provides that he shall put them into tenantable condition and make such repairs or alterations as the public authorities may require. A covenant to keep in repair requires that the repairs be made as needed to avoid injury and deterioration of the property. But a covenant to make repairs or improvements, or to put the premises into a tenantable condition, without specifying the time within which the repairs or improvements shall be made, gives the tenant the whole term in which to make such repairs or improvements, and he is not liable to suit or forfeiture during that time for his failure to do so (26).
§ 67. Same: Tenant's assigns. Covenants by the tenant to make repairs and improvements run with the lease and the reversion, binding him and his assigns to the lessor and his heirs and grantees. The lessee does not diminish his liability by assigning his lease, for his liability is founded on his contract. But as the assignee of the lessee is under no contract liability, and is liable only
(25) Phillips v. Stevens, 16 Mass. 238. (26)
Chipman v. Emeric, 5 Cal. 49. But see Wilson v. Owens (1897, Ind. Ter.), 38 S. W. 976.
by reason of the privity of estate between him and the lessor or his grantee, he is liable only for breaches of the covenant during the time he has the property; by making another assignment he may escape any further liability for breaches after the time he assigns, but not for the time he had the property (27).
(27) Bullock v. Dommitt, 6 Term 650; Pitcher v. Tovey, 1 Salk. 81.
§ 68. Nature of rents. Rent is a render or return in the nature of an acknowledgement or compensation for the possession and use of lands, tenements, or hereditaments. There is no necessity for it to be in money, as it usually is. Provisions, cattle, services, or other things given for the use of land are equally rent. It may also consist partly in services, partly in provisions, and partly in money (1). It ought to be certain, but it is not necessary that it issue every week, month, or year. It was usually in the old law yearly, as the farmer had the crops yearly with which to make the payment. But it might be every other year or at other periods. To be rent it must issue out of and be for lands and tenements corporeal; otherwise it is a mere personal debt or annuity, not at common law assignable, and binding only on the parties by virtue of their contract.
§ 69. Kinds of rents. At common law there were three kinds of rents, viz: service, charge, and seck. Rent service could exist only between lord and vassal as an incident of tenure, and its most valuable and distinctive incident was the right of the lord to seize and hold the goods of the tenant in distress for the breach by the tenant of his covenant to pay rent, or the like, though nothing was said in the instrument creating the rent con
(1) Fiske v. Brayman, 21 R. I. 195 (payable in ice).
cerning the right to distrain. Rent charge was rent without any tenure between the lord and tenant, but containing an express provision giving the lessor the right to take the goods of the lessee and his assigns for distress to compel payment of the rent. Rent seck, also called barren rent because of the lack of remedy for enforcement of it, was rent without any right to take distress, either by virtue of tenure or express stipulation in the lease. All of these also had other names, as white rent if payable in money (silver), black rent (blackmail) if payable in provisions, chief rents if payable to the king by freeholders, rack-rent if for all the use was worth, and fee-farm rent if reserved in a conveyance in fee. The classification of rents as service, charge, or seck is now principally of historical interest, as there are no tenures, and distress now exists by virtue of statute or provision in the lease if at all. In a number of the states the practice of taking distresses is now out of use. Royalties reserved in mining leases of every tenth bucket of ore or so much for each ton hoisted or sold are within the strict definition of rent. All true rents are strictly reservations, which may be defined to be a taking back or creating something new to the grantor to issue out of the land granted; and it was a rule of the old law that all reservations to a stranger to the deed were void. Therefore, if land is let and the lessee is required to make payments to one not a party to the deed, these required payments are not strictly rent, though they may be recoverable by the party for whose benefit the payments are to be made.
§ 70. Liability to pay rent: In general. The giving of the lease is a sufficient consideration for the promise of the lessee to pay rent; and it is no defense to the action for rent that he never took possession under the lease, unless his failure to take possession was due to the failure of the landlord to enable him to enter, or the lessor's failure to put the premises in the condition in which they were to be before the tenant was to take possession, or unless the lease was void. On the other hand, there is no liability for rent unless there is a lease or an agreement express or implied to pay rent. As a general rule one who occupies the land of another with his permission is liable under an implied promise to pay what the occupation is worth; but the relations between the parties, as brother and sister, parent and child, or the like, may rebut this presumption; and if it appears that the intention of the parties was not to pay rent, as if possession is taken as vendee, as the agent of the owner, or the like, no such promise is implied. If one enters under a void lease, because it is not in writing, or the like, he is still bound to pay rent, and the lease may be proved to show the amount the plaintiff is entitled to recover.
Actual possession is essential to render one liable for use and occupation in an implied assumpsit, and in most cases of liability for rent created by implication. The amount of rent recoverable on these implied contracts to pay is the rental value of the premises, regardless of their peculiar value to the tenant, his failure to make the best use of them, that they would have been vacant but for his possession, or the like; and what is