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upon; for which payment he that takes binds himself and his heirs for ever, on the security or guarantee, as it is termed, of his own property, present and future, real and personal, and that of his heirs. It is sometimes agreed that this guarantee shall not be created, but in the absence of express stipulation to the contrary, it will be implied in law. '
This species of sale for a “ rente ” is called Bail d Rente, and is thus defined by Pothier :—“ Le bail a rente simple est un contrat par lequel l’une des parties baille et cede s l’autre un héritage ou quelque droit immobilier, et s’oblige de lui fair avoir it titre de propriétaire, sous la réserve qu’ il fait d’un droit de rente annuelle d’ une oertaine somme d’argent, ou d’une certaine quantité de fruits qu’ il retient sur le dit héritage, et que l’autre partie s’oblige reciproquement envers elle de lui payer taut qu’elle possedera le dit héritage.”
A “rente” may, at the will of the contracting parties, be originally made “assignable” or “rachetable,” and a Rente retour de Bille de Partage is said to be in law both “ asssignable ” and “rachetable,” independently of any agreement, although a longestablished custom, whilst leaving it “assignable” has deprived it in practice of its “rachetable” quality. If a “rente” is “assignable,” the debtor may, at his own will, substitute some other “rente” equally well secured for it. If “rachetable,” the debtor is entitled to redeem it at any time at the price stipulated in the contract.
When an estate is sold, all the “rentes” due upon it are required to be specified in the contract, or instrument of conveyance, and the vendor (in order to free himself from the payment of themin future) has to deliver to the owner of each “rente” an exemplification of the contract, under the seal of the bailiwick. These exemplifications are denominated “droits.” 1/Vhen the whole estate on which a “rente” is due is alienated, the “rentier” or owner of the “rente” cannot object to accept the “droit.” But if a part only of such estate is alienated, and the vendor has fixed on such part the “rente” due on the whole, the “rentier” may be compelled by law to accept it, if the part alienated is
deemed of suflicient value to answer the “rente.” Although the owners of the “ rentes ” accept the purchaser as their debtor, they still retain the guarantee of the seller.
On this subject of guarantee, it may be observed that, where a “rente” has been created on a certain piece of land, the whole of the land remains a perpetual guarantee for the-“rente” originally charged upon it, even though all or part of such land may have been sold since the creation of the “ rente;” also, where a “ rente” is due upon one piece of land, every part of the real property belonging to the owner of such land, even though subsequently. alienated, is a guarantee for the “rente,” in the absence of any stipulation to the contrary. The liability of the part alienated is barred by prescription, the period of which begins to run from the time of the alienation. Moreover, if one already possessed of land afterwards purchases or inherits other real property, such afteracquired property becomes liable for the “rentes” or other charges due upon the property he possessed before; but under special enactments of modern date, such after-acquired property may become discharged in the hands of a subsequent purchaser.
“Then the owner of landed property is not able to pay the “ rentes,” or other charges due thereon, legal measures are taken, the consequence of which is that the estate falls “ en saisie,” as it is termed. In this case, all claims upon the estate have to be entered upon a register at the “ Greffe” ofiice, and certain proceedings are taken, the object of which is to secure the
claims of encumbrancers in the order of priority. When the estate consists of one property only, the case is in its simplest form. The encumbrancers are called upon in the order of posteriority—'i. e., the most recent is called on first either to accept the estate, with all its encumbrances, or to give up his own claim ; and if he refuses the offer, it is repeated to the others in succession, until at last an encumbrancer is found willing to take the estate, subject to the claims of all prior encumbrancers. A But when the estate, “en saisie,” is composed of several properties inherited or purchased at different times, and severally charged with perpetual “ rentes,” the proceedings assume a very complicated aspect; and if the estate, collectively, is not worth the whole of the encumbrances due upon it, it becomes necessary to investigate the titles of each separate property; and the “ rente” holders, independently of their claim upon the estate collectively, are entitled to disconnect the dififerent properties—the one from the other—-and to attach themselves each to the particular property charged with his “rente.” If any questions of guarantee arise, other parties are brought into the suit with a view to their being sent before a commissioner of the court, who has to examine into their respective titles. A report is then drawn up by the commissioner, setting out the order in which, as well the claimants upon the estate, as those who are liable as “ garans,” should be called upon to speak in the “ saisie. ” The claimant of most recent date would have to speak first, and three courses would be open to him :—1st, To take the whole estate, and bind himself to pay all the other charges upon it. 2ndly, To take the part charged with his “rente,” and pay the other charges upon that part. 3rdly, To give up his claim.
In the event of his giving up his claim, the next claimant is called upon in like manner, and the final result of the proceedings is, that the whole estate becomes the property of one of the claimants, or the different parts become the separate property of some one or other of the owners of “ rentes” upon them.
All persons liable to guarantee are called upon at their respective dates, either to take the “saisie,” or to give up the property liable to guarantee. er Real property is not devisable by will, except in cases in which the possessor has no descendants in the direct line; but, on the death of a father, the eldest son takes as his “ préciput,” or eldership, the most valuable buildings, standing within an area varying from fourteen to twenty-two perches, the extent of which variation is determined by the “ Douzaine,” or parochial ward. The remainder of the estate, together with any “ rentes ” (for “ rentes ” are real property), is divided amongst the co-heirs (the eldest son himself included), in the proportion of two-thirds to the sons, and one-third to the daughters, subject, nevertheless, to the condition
thata daughter shall inherit no more than a son, nor a son more than twice as much as a daughter. But the eldest son may, besides his “ préciput,” take at a. valuation to be put upon it by the “ Douzaiue,” as much as he pleases of the laud connected with the “ préciput ” as lies within the “ enclos,” or ring fence of the estate, or the whole of the estate if it form but one “ enclos,” which is but rarely the case in Guernsey ; and, if the whole of the land within the “enclos” is of less extent than one-third of the estate, he may
take so much laud outside the “enclos” as will make up onethird of the whole estate.
For the excess of laud over the “préciput,” which the eldest son thus takes, he is obliged, unless a money compensation be mutually agreed upon, to compensate his co-heirs in “ rentes” for their proportion of such excess. These “rentes” may either be the “ rentes,” if any, forming part of the estate of the deceased, or “ rentes ” specially created by the Bille ole Partage. These being, as we have seen, “ assignables,” the eldest son may free the property from the encumbrance by substituting some other “ rentes” of equal amount.
In collateral succession, real property is divided between brothers and sisters in the same proportion as above stated. The eldest brother, however, has no advantage over his co-heirs ; and if nephews or nieces represent their deceased father or mother in the succession, they subdivide among themselves the portion thus
coming to them in thesame proportions as if it had come to them directly from their deceased parent.
Heirs are “ garaus” to each other for the “ rentes,” and other real property inherited and divided between them, until this liability is barred by prescription.
It may be worth while to observe that a similar system of “ rentes ” (except that a “ rente constituée ” was always redeemable) formerly prevailed in France, but in that country great alterations in the law have from time to time been made. The first of these was in the year 14-tl A.D., during the reign of Charles VIL, when all “ rentes" due on houses in the town or fauxbourgs of Paris were made redeemable. The reason given being,
that agreat number of houses, being charged with “ rentes” above their value, were allowed to fall to ruin ; and, by a law passed in the reign of Henry Il., this privilege was extended to all the towns in the kingdom. At last, at the time of the French revolution all perpetual “ rentes” were made redeemable.
The system of “ rentes,” which the people of Guernsey inherited from their Norman ancestors, is one to which they are much attached. Their tenure of land and their family arrangements are based upon it; and so jealous are they of any interference with it, that when the states, last year, adopted a Projet de Loi, which was sent up for the consideration of the Privy Council, for the redemption of small “ rentes” under the yearly value of one quarter of wheat, and of money “rentes” under the value of twenty shillings, a large party among the inhabitants, many of them members and ex-members of the states, not only stoutly opposed the Projet de Loi before the states and the Royal Court, but afterwards petitioned to be heard by counsel before the Privy Council in opposition to it; stating in their petition, that the proposed redemption would be a flagrant outrage on the feelings of the petitioners, as these small “rentes” had been in their possession, and in that of their ancestors, from time immemorial, and constituted their real property; that the existence of such “rentes” stimulated the purchasers of land to industry, and enabled the vendors to retain for themselves, and their heirs for ever, a permanent interest in the land disposed of by them; the results whereof were the wide-spread prosperity and harmony which subsisted amongst all classes of the inhabitants of the island. The petitioners ended by saying that the public in general, instead of being benefited by the redemption of small “rentes,” would experience all the effects which a social revolution never fails to produce, and which would be highly detrimental to the best interests of the island. Notwithstanding this opposition, however, the Privy Council confirmed the law, on the ground that such small “ rentes” were a burden upon the real property far beyond their actual value, and that their existence, as a perpetual charge upon the land, acted as an impediment to its beneficial sale and transfer.