So where land is sold subject to some charge, which the vendor will after conveyance remain personally liable to pay, the purchaser is bound to covenant to indemnify the vendor against all liability for its nonpayment; as where a mortgagor sells the equity of redemption of the mortgaged land (h), or land is sold subject to a rent-charge which the vendor has, either on its original creation or on his own purchase of the land, covenanted to pay (i), or an estate in remainder liable to succession duty is sold (k).

Indemnity on sale of land subject to a charge for which the vendor will remain liable.

Where land is sold in consideration of a rent-charge to issue thereout either for life or in fee, the vendor is entitled to require that the rent shall be secured to him, not only by charging the same on the land sold, but also by the purchaser's personal covenant for payment (/). The vendor is also entitled to have an express power of distress limited to him, that being of the essence of a rent-charge (m). It is questionable, however, whether he is entitled, in the absence of express stipulation, to have the rent-charge further secured by a power in default of payment to re-enter and hold the land until the arrears of the rent and all costs be satisfied (n): although it has long been usual, on conveyance of land in consideration of a rent-charge, to reserve such a power (o). But a stipulation that the rent-charge should be secured by "proper provisions" would certainly entitle the vendor to have the same secured by such a right of entry (p). The vendor is not entitled, without express stipulation, to have reserved to him a power in default of payment of the rent to limit a term to a trustee on trust to raise the arrears by sale or otherwise (q). And if no such express stipulation were made in the contract of sale, and the remedies for recovering the rent-charge are to be reserved, as is now usual, by tacit incorporation in the conveyance of the 44th section of the Conveyancing Act of 1881 (r), the purchaser should be careful to insert a proviso modifying the operation of that enactment in accordance with his rights under the contract, and excluding the power to limit a term, which the statute would otherwise confer (s). The vendor is not entitled, in the absence of express stipulation, to have a power limited to him in default of payment of the rent to re-enter on the land and hold the same as his own. Where land is sold partly in consideration of an agreement by the purchaser to erect buildings thereon, it is thought that, unless the contract otherwise provide, the vendor is only entitled to have the purchaser's covenant to erect the buildings (t). It is therefore desirable for the vendor to insert in such a contract an express stipulation that he shall, in default of due performance of the covenant, have a power of re-entry and holding the land until the covenant be performed, such power to be exercisable within a period not exceeding the limits of the rule against perpetuities; and it is sometimes advisable to make such a stipulation where it is agreed that the purchaser shall observe restrictions on the use of the land sold (n). But it seems that a stipulation that the performance of the covenants shall be secured "by proper provisions" will entitle the vendor to have,such a power of re-entry reserved to him (x).

Sale in consideration of a rent-charge.

(g) Expte. Ralph, De G. 219.

(h) Waring v. Ward, 7 Ves. 332, 337; Bridgman v. Daw, 40 W. R. 253; Sug. V. & P. 198.; 1 Dart, V. & P. 557, 5th ed.; 629, 6th ed.; 579, 7th ed.; Davidson, Prec. Conv. vol. ii. pt. i. 453 and n. (d), 4th ed. The purchaser is liable in equity to indemnify the vendor without such covenant; Waring v.

Ward, ubi sup.; Re Law Courts Chambers Co., 61 L. T. 669, 671.

(i) 1 Dart, V. & P. 559, 5th ed.; 631, 6th ed; 582. 7th ed.; see above, p. 435.

(k) Re Repington. 1904, 1 Ch. 811, 814; Dart, V. & P. 557, 593, 5th ed.; 629, 668, 6th ed.; 580, 1234, 7th ed.; see above, p. 407.

(l) Bower v. Cooper, 2 Hare, 408; 1 Dart, V. & P. 562, 6th ed.; 634, 6th ed.; 585, 7th ed.; Davidson, Prec. Conv, vol. ii. pt. i. 509, n., 4th ed.

(m) Bee Wms. Real Prop. 432, 21st cd. This is none the less so that a remedy by distress was given for rent Beck by stat. 4 Geo. II. e. 28, s. 5.

(n) See Expte. Ralph, De G. 219.

(o) Davidson, Preo. Conv. vol. ii. pt. i. 508 and n., 4th ed.; Wms. Real Prop. 337, 13th ed.; 425, 20th ed.

(p) Expte. Ralph, De G. 219.

(q) See Expte. Ralph, De G. 219; Davidson's Concise Precedents, 207, n. (a), 18th ed.

(r) Stat, 44 & 45 Vict. c. 41: see Wins. Real Prop. 433, 43G, 21st ed.; Wms. Conv. Stat. 216, 217.

(s) Davidson's Concise Precedents, 207, n. (a) . 18th ed.

W

Sale partly in consideration of an agreement by the purchaser to build.

An express power of distress granted either in terms or by the operation of the 44 th section of the Conveyancing Act of 1881 (y) is certainly not obnoxious to the rule against perpetuities. Such a power is, as we have seen, of the essence of a rent-charge; it merely confers by express grant the same remedy as is annexed to rent service at common law and now by statute to rent seek (z); it creates no separate future interest in the land apart from the rent; and it has been known to the law and always treated as unquestionably valid from Littleton's time (a) onward (b). It is submitted that the better opinion is that a right reserved on the crea-tion of a rent-charge in fee for the owner of the rent, his heirs and assigns to enter on the land charged in default of payment of the rent at any time and to hold the same until the arrears of the rent and all expenses shall be satisfied out of the rents and profits is not void for remoteness, although its exercise be not confined to the duration of existing lives and twenty-one years after; and that this is the case whether such right of re-entry be created by direct reservation or by means of the Statute of Uses. For it has always been considered that such a power of entry, being given by way of remedy only for recovery of the rent, is merely a part of the estate which the grantee of the rent has in the rent limited to him; the power passes by a grant of the rent as incident thereto, whereas if it had been an independent interest or condition it would have been inalienable at common law, and the heir alone and no assign of the grantee could have made use of it (c); and it gives only a right of seizure and temporary occupation, which does not divest the estate of the terre-tenant (d), and confers no more than an interest to take the profits in the nature of a distress (c). The right created by such a power appears, therefore, not to be an interest, independent of the rent, to arise at a future time in the land out of which the rent issues, and so not to fall within the class of future interests in land which must conform with the rule against perpetuities (/). And it is submitted that there is no occasion, on conferring such a power of entry in connexion with the creation of a rent-charge in fee, to confine the possible exercise thereof within the term of some existing lives and twenty-one years after (g). There appears to be no doubt, however, that a power given to the owner of a rent-charge in fee, in case of non-payment of the rent-charge at any time, to limit an absolute term of years to a trustee on trust to raise the arrears by sale or mortgage thereof, is invalid; for the creation of such a term would confer an interest in the land charged, which would not be determinable on payment or satisfaction of the arrears of the rent (h); and such a future interest, capable of existing independently of the rent must, it is thought, be limited to arise within the time allowed by the rule against perpetuities or it will be void (i). If, therefore, use be made of the 44th section of the Conveyancing Act, 1881 (l), on the creation of a rent-charge in fee, care must be taken to confine the possible exercise of the power of limiting a term therein mentioned (if this power be not altogether excluded (l)) to the period of the duration of some existing lives or life and twenty-one years after. With regard to the limitation, on the conveyance of land in consideration of a rent-charge in fee to issue thereout, of a power for the grantee of the rent, his heirs and assigns to enter in case of non-payment of the rent at any time and thenceforth to hold the land charged in fee as his or their own, if such a power is reserved by way of shifting use, as it must be to enable the grantee's assigns to take advantage of it (m), it will be void unless limited to the time allowed by the rule against perpetuities (n). And so will a like power of entry limited by way of shifting use to arise on breach of covenant (o). In either case the power is quite different from a power annexed to a rent to enter and satisfy arrears; for a power to enter and hold the land absolutely defeats altogether the estate given subject to the power (p), the event in which the power is to be exercisable being a cause of forfeiture of that estate. As to conditions of entry limited on gifts of land at common law to the donor and his heirs, they were in use and were considered to be perfectly valid long before the rule against perpetuities was heard of (q), and the opinion of the Real Property Comimis-sioners was that, although these conditions came within the policy of the modern rule against perpetuities, their validity was not affected by that rule, as it then existed (r). Recently, however, the opinion has been judicially expressed that a common law condition of reentry annexed to a grant of land in fee is invalid unless the event, in which the power of entry is to arise, must occur within the time allowed by the rule against perpetuities (s). If, then, on side of land in consideration of a rent-charge and a covenant to build or to observe restrictive covenants, the vendor stipulate for the reservation of a right of re-entry by way of forfeiture on non-payment of the rent or breach of covenant, such right of entry must, if it is to be extended to the vendor's assigns, be created by way of shifting use and must therefore be limited to arise within some lives or life in being and twenty-one years after (t). And in the present state of the law it would be unwise to create a common law condition of re-entry without limiting the time of its possible exercise in the same way (u). And it is thought that this is equally the case where land is sold partly in consideration of the performance of building or restrictive covenants and it is stipulated that the performance of the covenants shall be secured by a power of re-entry and holding till performance of the covenants (x). In this case also it appears that a right for the vendor's assigns to re-enter can only be secured by a shifting use (y); and as the right to enforce a building covenant can confer no interest in the land to be built on, and the right to enforce a restrictive covenant is merely an equitable interest in the land thereby affected (z), it does not appear to be maintainable that a right of re-entry of this kind is a part of the estate of the person entitled to enforce the covenant; which is, as we have seen (a), 1 he ground on which a like power of entry annexed to a rent is asserted to be valid, though unlimited as to time.