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ART. II.-THE TENURE OF REAL PROPERTY IN
THE ISLAND OF GUERNSEY.
ANDED property in the island of Guernsey is for the most
part held in fee, subject to the payment of certain perpetual “rentes.” These owe their origin to circumstances and incidents which we will proceed to describe :
1st, On the sale of property, part of the consideration is reserved in the form of a "rente." This is called Rente du Fonds, and is in the nature of a fee-farm rent.
2ndly, When the owner borrows money, it not unfrequently happens that, instead of granting a mortgage upon his property, he charges it with a perpetual “rente.” This is called Rente Constituée, and is in the nature of a rent-charge.
3rdly, When property is divided between coparceners, one of them frequently takes a larger portion of the land than would fall to his share, and makes up the difference by charging his portion with perpetual “rentes” in favour of his coparceners. These are called Rentes retours de Bille de Partage.
These several modes of creating "rentes” have been in operation since the earliest times ; and almost all the landed property in the island has thus become encumbered with irredeemable "rentes." Most of these "rentes” are payable in kind; wheat "rentes” are the most common, but they are occasionally made payable in other produce, such as capons, fowls, ducks, a loaf of bread, or an eel!
All “rentes" are due in October, but the average prices of corn, &c., are not found until the Easter following; so that, if they are paid in money in lieu of kind, the payment cannot take place till after that time.
On the sale of real property the price is always calculated in wheat "rentes;" so that when a man has either house or land to dispose of, he sells it to another, to hold to him and his heirs for ever, paying yearly so many quarters of wheat as may be agreed
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 à Rente, and is thus defined by Pothier :-"Le bail à rente simple est un contrat par lequel l'une des parties baille et cede à l'autre un héritage ou quelque droit immobilier, et s'oblige de lui fair avoir à titre de propriétaire, sous la réserve qu'il fait d'un droit de rente annuelle d'une certaine 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 tant 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 them in 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." When 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 sufficient 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 tiine 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.
When 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” office, 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.
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 tities of each separate property; and the “rente” holders, independently of their claim upon the estate collectively, are entitled to disconnect the different 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.
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
that a 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 " Douzaine,” as much as he pleases of the land 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 land outside the “enclos” as will make up onethird of the whole estate.
For the excess of land 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 de 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 "garans” 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 14:41 A.D., during the reign of Charles VII., when all “ rentes” due on houses in the town or fauxbourgs of Paris were made redeemable. The reason given being,