#### *R. Sury vs. Brown.

Hill. 1 Car.

DEBT for rent. The plaintiff counted that John Sury leased lands to the defendant for twenty five years; rendering and paying pro inde annuatim, durante dicto termine prefato Johan Surry, et assignatis suis, so much rent. John levied a fine of all the lands demited to the defendant to another, to whom the defendant attorned, and the other granted them to the plaintiff, to whom the defendant also attorned: and for rent arrear, the plaintiff brings this suit. The defendant pleads an assignment of the lease by deed indented, bearing date, &c. Whereupon the plaintiff demurred. The first exception to the declaration was, that the life of the lessor is not averred, and a question raised, whether the rent shall continue after his death? otherwise it shall be intended by the declaration that the lessor is dead; and then there is no cause of action. It was objected that by the lessor’s death, the rent is gone, 11 E. 3. Ass. 86. H. 33. Eliz. rot. 1316. Butcher and Richman's cases in C. B. in replevin &c. Where there was a lease for years of certain lands rendering rent, during the term to the lessor, his executors and assigns: and it was adjudged that the heir shall not have the rent. It was farther urged that the reservation shall be taken more strongly against the lessor. But if the reservation had been rendering rent during the term, it should have been by construction extended to the whole term; for the rent is incident to the reversion. If two tenants in common, grant 20s. rent to another, he shall have 40s. but if they had joined in a lease for years rendering rent 20s. they shall have no more. 10 E. 4. 1. 10 Rep. Clum's case. The rent shall go according to the words of the reservation strictly taken: but in 5 rep. Mallorie’s case the disjunctive is taken for copulative: a feoffment to have and to hold to the feoffee of his heirs, is not an estate for life,

2. The lease is of the land with common of pasture for ten sheep, and he has pleaded that it is not by deed: then if the demise be void, the reversion is so likewise. On this, it was resolved, that the rent issues out of land. Respecting the defendant’s bar, exception was taken to the want of averment of the place where the assignment was made. It was argued that it shall be intended to have been done on the land. 21 H. 7. 23. The defendant avowed for homage. The plaintiff said he had tendered homage, and no place specified. Yet it was held well, because the de*100fendant may rejoin, if the place is traversable. 1. There is a difference between a transitory *thing, when a place ought to be alledged, as in an arbitration, where the thing is local. 5 H. 4. 24. per cur. "it is, not now the way so alledge the place in a rejoinder, although heretofore it was:" and there it was overruled. As to the reservation, it was argued by Bridgeman for the plaintiff, that the rent continues after the death of the lessor, and shall descend to the heir, if no assignment is made of the reversion. Here the assignee shall have it as in 27 H. 8. 19. 10 E. 4. 18. Dyer 45. Rent reserved as long as the lease continues shall be paid to the heir, although no mention he made of him in the lease. Plowd. 171, 177. The heir shall not have the rent, for it appears that it was not the intention of the lessor he should. Mallorie’s case 5 rep. 112. When the reservation is rendering rent annually during the term, it is plain that the heir shall have the rent: then the subsequent words to the lessor and his assigns, do not restrain the precedent ones, but demonstrate that the rent is to be paid.

The Judges gave briefly their opinions.

Whitlock, J.

The rent shall continue; for a lease for years is a contract; and the law favours a recompense in every contract; it is natural equity and de jure communi; therefore without consideration by feoffment the land only passes to the use of the feoffor. Thus, when a man makes a lease for years, without reservation, still the law reserves his attendance; it requires a quid pro quo. Dyer 45. 5 rep. Mallorie’s case. Conformity is to be observed in constructions. 10 Rep. Dr. Leyfield’s case: Words shall be taken largely in a reservation. In this case the reservation is rendering rent annually during the term; it is plain that the contract is that the rent shall continue during the term; and the intention was not that it should continue only for life. But if the reservation had been to the lessor only, it would be otherwise. Here it is reserved to the lessor and his assigns. 14 H. 6. 26. is an express authority that the heir shall have the rent.

Jones, J.

concurred. A number of various discordant adjudications, on this point, are to be found in the books; and the line betwixt express and implied reservations is not yet precisely drawn. The first case is 11 E. 3. Ass. 6. 10 E. 4. 18. per Littleton. If I lease land for years, rendering rent to me, without mentioning my heirs, still they shall have it; for it is annexed to the reversion. Mayle denies this 27 H. 8, 19 per Audly. If rent be reserved on a lease *101for years to the lessor, without saying during the term, or to the heirs; they shall not have it; for the reservation is the source of the rent; and it may be reserved *determinable for life. Dyer 45 is like this. But there is a very narrow distinction, viz. where rent is reserved generally, it shall go to the heir; but when it is to the lessor, the heir shall not have it. Yet this is only when the words during the term are omitted. Here it is reserved annuatim during the term to the lessor. 8 Rep. 70. Whitlock's case, The other words are only to shew to whom and how the rent is to be paid. In Mallorie's case if the rent had been to be paid to the Abbot or his successors, it would have been bad: For it shall be only to the Abbot himself; But when he reserves it annuatim it is otherwise. I am therefore for the plaintiff.

Doderidge, J.

cited 11 E. 3. Browning and Boston's case, Commentarys 21 H. 7. 10 H. 7. I think that the rent does not continue after the lessor’s death. The words of the demise are the words of the lessor; therefore he shall have recompense; but the reservation is his act; and it shall be taken strictly against him. He has limitted the rent to be paid to himself: the law shall not extend it beyond him; for he has abridged and curbed its limitation. Mallory's and Whitlock's case cannot govern this. There the lessee had not his election to pay to the Abbot or his successors; and it seems that even if he had, he should pay to his successors. I rather deliver now my present opinion than give a judicial decision.

Crew, C. J.

The rent ought to be paid annually to the lessor and his assigns.

On another day, absente Doderidge, J. Judgment was entered for the plaintiff.

Dyer 114. Placit. 60. Covenant to pay quit rents during the term, without mentioning his heirs or executors; the executors are not bound to pay. Nota. It was agreed by all, that no costs are payable in a scire facias. 3 Bulstr. 326. Bendl. 188. 159. 3 Rol. 1. 451.