judged &c., to be in the actual seisin and possession of a yearly rent or sum, as a fee-farm rent (a), equal in amount to the land-tax so purchased, free of all charges and deductions, to be issuing and payable out of the manors, messuages, &c. whereon the land-tax so purchased was charged, on the same days as such land-tax was payable at the time of the purchase thereof; and such respective purchasers, their heirs, successors, and assigns, shall have priority of security on such manors, messuages, &c., in respect of such annual sum or rent, over every other incumbrance thereon, and shall have and enjoy all such powers, remedies, benefits, and advantages, for the recovery thereof, whether by action, suit, distress, or otherwise, as landlords, by law, have, or can enjoy, for the recovery of rents reserved on leases." The rent, thus imposed in lieu of land-tax, is clearly a parliamentary tax or assessment, within the meaning of the covenant. The object of the statute was, to leave landlords and tenants in the relative situation with respect to the land-tax in which they previously stood. There was no intention to relieve tenants from any liability to which they had subjected themselves in their (a) The term "fee-farm rent appears to be here used instead of "rent-charge." A fee-farm rent is a rent-service reserved upon a feoffment in fee, where, by the terms of the feoffment, the feoffee is to hold of the feoffor; and it is commonly reserved upon grants by the crown. But it has been said, that since the statutes of quia emptores and de prærogativâ regis, there can be no feoffment by a subject, to hold of the feoffor, and, therefore, no new manor created, except with the consent of all lords, mediate and immediate. But the restriction in the former statute is confined to feoffments by 1841. The Governors of CHRIST'S HOSPITAL v. HARRILD. 1841. The Governors of บ. HARRILD. leases. This is clearly shewn by the 158th section, which applies only to tenants who were not under any covenant to pay the land-tax. By that clause it is enacted that, "where the land-tax, charged on any manors, messuages, lands, tenements, or hereditaments which are, or shall be, leased or demised, at a rack rent, for any term or number of years, or from year to year, or at will, shall be purchased by any tenant or lessee thereof, who shall not be bound by any covenant or agreement to pay the land-tax during the continuance of the demise, it shall be lawful for such tenant or lessee to retain out of the rent reserved, or made payable on such lease or demise, during the continuance thereof, the amount of the land-tax so purchased, and the payment or tender of the residue of such rent shall be as valid and effectual to discharge such tenant or lessee, as the payment or tender of the whole rent reserved on such lease would have been in case such land-tax had not been purchased." Mathie, having bought the land-tax while he was tenant of the premises, and under covenant to pay it, could not have deducted it from his rent under the above provision; neither could the present defendant have made the deduction, had he been the party effecting the purchase. If that be so, he can have no right to deduct the amount, merely because the land-tax was purchased by a stranger. [Erskine J. Is there any provision in the statute applicable to the case of a purchase of the land-tax by a landlord, while there is an existing lease under which his tenant has covenanted to pay it?] That case is provided for by the 126th section, which enacts, that the amount of the land-tax, so redeemed by the landlord, shall, during the continuance of the lease, be considered as rent reserved thereon, and be payable and recoverable in like manner. There is a clear distinction between a redemption of the land-tax by the owner of the property, and a purchase of it by a stranger. On a redemption by the owner, the land is altogether freed from the tax, but on a purchase by a stranger the land is subjected to a parliamentary assessment in the shape, or by the name, of a fee-farm rent. The circumstance of its being reserved in such a form does not make it the less a tax. Stephen Serjt., for the defendant. There is not any essential distinction between the purchase and the redemption of land-tax. Assuming the contract by Mathie with the commissioners to have been a purchase, it is submitted that the defendant is not bound to pay this rent-charge under his covenant. The statute points out two courses of proceeding. By s. 10, all persons having any estate or interest in any manors, &c., whereon any land-tax shall be charged (except tenants at rack rent, &c.), are authorised to contract for the redemption of such land-tax; and by sects. 18, 19, & 20, parties entitled in possession, or in reversion, to the rents and profits, have a preference given to them until the 24th June 1803. The thirty-eighth section provides that on payment of the consideration for such redemption, "the manors, messuages, lands, tenements, and hereditaments, or other property comprised in such contract, shall be wholly freed and exonerated from the land-tax charged thereon, and from all further assessments thereof, from such of the quarterly days of land-tax as shall next precede the day of the transfer or payment of such consideration, or the first instalment thereof; provided the certificate of the contract shall be duly registered, pursuant to the directions of this act." The effect of the redemption therefore is, that the land-tax ceases to exist as a tax. The 123d section, which secures to the party redeeming the benefit of the redemption, enacts, that where a party having a limited interest in any land shall redeem the land-tax out of 1841. The Governors of CHRIST'S HOSPITAL V. HARRILD. 1841. The บ. his own property, such lands shall become chargeable, for the benefit of such party and his "executors, adGovernors of ministrators, and assigns," with the amount paid as the CHRIST'S consideration for the redemption of such land-tax, and HOSPITAL with the payment of a yearly sum by way of interest, HARRILD. equal to the amount of the land-tax redeemed; thus making the rent-charge transmissible to the personal representatives of such party. The clauses relating to the purchase of the land-tax by strangers, are the 151st and the 154th. By the former, where the land-tax shall not have been redeemed within the prescribed period by the parties entitled to preference, the commissioners may contract for the sale of it to other persons. And upon the registry of such contracts, the 154th section, using the very same words as are contained in the 38th clause, provides that "the manors, &c. the land-tax whereof shall be so purchased, shall be wholly freed and exonerated from such land-tax, and all further assessments thereof," &c.; and the purchaser is declared to be entitled to a fee-farm rent transmissible to his heirs. Therefore, whether the land-tax is redeemed or purchased, it is in either case extinguished. The question then is, whether, as regards the defendant's covenant, this rent-charge is to be taken as equivalent to the land-tax itself. The fact of the land-tax having been purchased by Mathie must have been known to the plaintiffs when they granted the lease to the defendant; but it would not be known to the latter, who, on inquiring as to the amount of taxes paid in respect of the property, would hear nothing of the present claim. If the plaintiffs had intended to make the defendant liable to pay it, they would have taken care to frame the covenant accordingly. According to the rule of construing words by their associates, the terms "taxes, tithes, and assessments," must refer to public burthens, and not to private claims. By the act not only is the land-tax to cease, but all assessments in respect thereof. The fee-farm rent substituted for the land-tax is a mere private security. In Ward v. Const (a), where the owner of a house, in consideration of a premium, demised it at one third of its annual value (the lease containing no stipulations respecting taxes or rates of any description), and afterwards redeemed the land-tax, it was held that he was entitled to receive from the tenant an annual payment equal to two thirds of the land-tax so redeemed. That case is an authority to shew that the land-tax is a charge upon the party beneficially entitled to the property. It may probably be contended that even although the defendant was not liable under his covenant to pay this demand, he could not set it off in the present action; but Hyde v. Hill (b) shews that such a payment may be made the subject of a plea of set-off. Peacock in reply. Although, perhaps, a technical objection might be taken to the pleading of the payment in question as a set-off, the plaintiffs have no wish to avail themselves of such a point. The question is, whether this is a parliamentary tax. It is impossible to contend that an annual payment imposed by act of parliament, is a mere private charge. It may still be a public tax or assessment, although payable to a private individual. Ward v. Const is an authority in favour of the plaintiffs. In Waller v. Andrews (c), where, by a memorandum of agreement, certain marsh lands were demised by the plaintiff to the defendant, subject to a condition that the defendant should pay all outgoings whatsoever, rates, taxes, scots, &c., whether parochial or parliamentary, which then were or should be thereafter charged or chargeable upon or on account of the (a) 10 B.& C. 635., 5 Mann. & R. 402. (b) 3 T. R. 377. 1841. The Governors of CHRIST'S HOSPITAL v. HARRILD. |