Statutory remedies.-44.—(1) Where a person is entitled to reeeive out of any land, or out of the income of any land, any annual sum, payable half-yearly or otherwise, whether charged on the land or on the income of the land, and whether by way of rentcharge or otherwise, not being rent incident to a reversion, then, subject and without prejudice to all estates, interests, and rights having priority to the annual sum, the person entitled to receive the same shall have such remedies for recovering and compelling payment of the same as are described in this section, as far as those remedies might have been conferred by the instrument under which the annual sum arises, but not further.
(2) If at any time the annual sum or any part thereof is unpaid for twenty-one days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears thereof, and all costs and expenses occasioned by non-payment thereof, may be fully paid.
(3) If at any time the annual sum or any part thereof is unpaid for forty days next after the time appointed for any payment in respect thereof, then, although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possession of and hold the land charged or any part thereof, until thereby or otherwise the annual sum and all arrears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by non-payment of the annual sum, are fully paid ; and such possession when taken shall be without impeachment of waste.
(4) In the like case the person entitled to the annual charge, whether taking possession or not, may also by deed demise the land charged, or any part thereof, to a trustee for a term of years, with or without impeachment of waste, on trust, by mortgage, or sale, or demise, for all or any part of the term, of the land charged, or of any part thereof, or by receipt of the income thereof, or by all or any of those means, or by any other reasonable means, to raise and pay the annual sum and all arrears thereof due or to become due, and all costs and expenses occasioned by non-payment of the annual sum, or incurred in compelling or obtaining payment thereof, or otherwise relating thereto, including the costs of the preparation and execution of the deed of demise, and the costs of the execu tion of the trusts of that deed; and the surplus, if any, of the money raised, or of the income received, under the trusts of that deed shall be paid to the person for the time being entitled to the land therein comprised in reversion immediately expectant on the term thereby created.
(5) This section applies only if and as far as a contrary intention is not ex pressed in the instrument under which the annual sum arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
The right to sue.—The question arose, in Thomas v. Sylvester, whether an action would lie against the freeholder in possession of the land for recovery of a rentcharge in fee created by deed. It was held that such a rent having been duly created such an action would lie, even against an assignee of the person (the grantor) in whose favour the rent was originally made payable. "All that was decided in that case was that it was a claim arising out of an interest which a tenant [owner] has in the possession of land and in the profits of the land at the time when the rent charge became due " (In re Blackburn and District Bmujit Building Society). And it has also been held (Searle v. Cook) that such an action can be main tained notwithstanding a statute has conferred special remedies upon the owner of the rent, But a mere tenant for years is not liable to an action for non-payment of a rentcharge issuing out of the land of which he is in occupation (In re Herbage Rents, Greenwich Charity Coinmissioners v. Green); but his goods are liable to distraint therefor, and the property to the statu tory remedies.