Tenure of real property in the island of Guernsey

22nd September 2015

From The Law Magazine and Law Review, or Quarterly Journal of Jurisprudence, May-August 1859, pp. 23 ff. Probably a comment on the reaction in Government circles to the Commissioners' Report of 1848, it also happens to provide a helpful explanation of the distribution of landed property and rentes in Guernsey. 'When the right and power is preserved among a free people of regulating their own legal and social customs, the habit of self-government thus engendered generally saves their country from the anomaly and inconvenience of the institutions and procedure being immediately at variance with the wants and character of the people.'

LANDED 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 de 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 Constitute, 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 deemed by Pothier:—

Le bail a 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 réciproquement envers elle de lui payer tant qu'elle possèdera le dit héritage.

[A straightforward bail à rente is a type of contract by which a party sells to another an inherited or other right to immoveable property, and in so doing agrees to hand over the title, on condition that the purchaser pay the vendor an annual rent, possibly in money, or in some amount of the produce of the estate, and the purchaser contracts to pay this for as long as he or she owns the property.]

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 assignable and rachetable, independently of any agreement, although a long established 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 time of the alienation. Moreover, if one already possessed of land afterwards purchases or inherits other real property, such after-acquired 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 titles 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 preciput, 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 preciput, take at a valuation to be put upon it by the Douzaine, as much as he pleases of the land connected with the preciput 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 one third of the whole estate.

For the excess of land over the preciput, 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 the same proportions as if it had come to thern 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 constitute 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 1441 AD, 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, that a great 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 II, 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.

This system of rentes, which gives the faculty of acquiring land in perpetuity without paying any purchase-money, though perhaps not worthy the praise given to it by the petitioners against the law for the redemption of small rentes, has probably been of great benefit to the inhabitants of the island. Under its protection the original owners have parted with their land for an annual rente of as many quarters of corn as the purchasers judged they could afford to pay, after a sufficient remuneration to themselves for their labour. 'Thus,' says the Royal Court, in a letter addressed to the Privy Council in the year 1820,

without the necessity of cultivating the soil, the one party enjoyed the neat income of his estate secured on the estate itself, which he could resume in case of non-payment; while the other, on the due payment of the 'rente' charged, became real and perpetual owner, having an interest in the soil far above that of farmers under any other kind of tenure. Experience has proved that a spirit of industry and economy was thus generated, that produced content, ease, and even wealth, from estates which, in other countries, would hardly be thought capable of affording sustenance to their occupants. And thus arose two classes mutually advantageous to each other, the one living on its income, or free to exercise trade and professions; the other composed of farmers raised to the rank of proprietors, dependent only on their good conduct.

On the 17th March, Mr. Hadfield moved, in the House of Commons, for an address, praying the Crown to issue a royal commission for the following purposes, viz.— 1. To inquire into and report on the civil, municipal, and ecclesiastical laws and customs now in force in Jersey—including the laws relating to the tenure of land, trust, and uses; and also the rights of the feudal lords in the said island. 2. To inquire into and report on the constitution of the tribunals by which those laws, customs, and rights are administered; and as to the practice and forms of procedure used by them respectively. 3. To inquire into, and report on, and suggest remedies for all defects in, and abuses of the laws, tribunals, and procedure, in force in Jersey, 4. To inquire into the state of prisons in the island; and 5, into the administration of certain public charities. Now, it may be thought advisable to include, within the scope of the commission, the other Channel islands in addition to Jersey.* [*We regret that this course has not been taken.—ED.]

That the ancient laws and customs here referred to, as well as the qualities and tenures of land and its incidents, should be thoroughly understood before they are attempted to be meddled with by parliamentary reformers, is an essential condition, and highly desirable ; and so a commission, if it issues, should be very carefully constituted. We regret to say that comprehension of the subject is not always considered an essential preliminary to sweeping subversion or obstinate maintenance of institutions. There is no doubt that ancient customs, and the laws of olden times, may outlive their beneficial purposes; and that they occasionally require modification, or even annihilation.

When the right and power is preserved among a free people of regulating their own legal and social customs, the habit of self-government thus engendered generally saves their country from the anomaly and inconvenience of the institutions and procedure being immediately at variance with the wants and character of the people. The laws and the community may not be invariably of commensurate growth, but we do not find revolution or external influences requisite to effect the desired concord between them. How this royal commission comes to be wanted, and how it will operate, we do not know; but we trust that the interests of the inhabitants of the Channel Islands, as well as those which England has in their contentment and prosperity, will be well considered before any important steps be taken to remodel their laws, customs, or institutions; and that those to whose hands the duty of inquiry and recommendation is confided will recollect, that sometimes what is theoretically ill-advised or peculiar in the eyes of a stranger, may, nevertheless, work very satisfactorily to those habituated to their own forms.

It requires an enlarged and acute understanding to reform even that with which we are ourselves familiar, and to remedy that which affects us, according to our own experience and knowledge; a fortiori is it a task demanding sagacity, temperance, deliberation and carefulness, when the ancient code of a people, who cherish especially their own nationality, is to be brought to the inquisition and tests contemplated, we presume, by the House of Commons, in their purposed address to the Crown.

From the Le Marchant family files (No. 5), in the Library, comes this document, a deed of sale illustrating just how complicated the assignation of rents could make already convoluted things:

2 June 1792. Mr Thomas Price, principal heir of his late father, Sr Thomas Price, appeared in court to confirm his father's succession as valid, his father having been seized of the estate of William Tasker, who was both the principal heir of his mother Margueritte Rilles and the part heir, in right of his mother, of his aunt Marie Rilles; the said Margueritte and Marie Rilles being heirs in part of their mother Marie Vauriouf. Jean Roussel and Catherine Viel, his wife, in her right as heir in part of her father, William Vieil, who was the main heir of his mother Marie Tasker, and confirming her status and that of her heirs in the succession of the said Marie Tasker, who was the heir in part of her mother Marguerite Rilles, who was herself heir in part of her mother, the said Marie Vauriouf. Jean de Putron, principal heir of his late mother, Marguerite Rose, confirming his status and that of his heirs in his mother's succession. And Elizabeth Blanche, heir in part of her mother, the late Elizabeth Rose, confirms &c. The said de Putron and Blanche, also confirm the status of the heirs of the late Catherine Rose, the said Margueritte, Elizabeth, and Catherine Rose, being heirs in part of their father, Hellier Rose, who was the principal heir of his mother, Catherine Rilles , and heirs in part, in the right of their grandmother, the said Catherine Rilles, of the said Marie Rilles their great-aunt, Catherine and Marie Rilles being heirs in part of their mother, Marie Vauriouf. They [all] sold to Charles Mauger. Esq., son of Elie, of St Peter Port but at this time residing in St Martin's, five bushels of wheat rent, to be paid every 6th October by the heirs of Sr Michel Collas, son of Pierre, of the parish & Clos du Valle. Michel Collas was designated to pay this rent to Dame Rebecca de Sausmarez, the widow of Mr Abraham Le Messurier, in her own right, because of the purchase made by Michel Collas from Sr Thomas Naftel, Junior, and from his sister Esther Naftel, of a courtil called the Camp Poso, situated in the parish and Clos du Valle, in accordance with a contract of 22 April 1780. This rent was a mortgage, having been mortgaged by Thomas Rilles and his wife Marie Vauriouf, in her right, to William Le Marchant, son of Josias, Esq., to be paid by Jean Le Conte, according to a contract dated 27 October 1660, which was shown to the Court, having been extracted from the Registers by Deputy Greffier Thomas Le Cocq. This mortgage was cleared by Mr Thomas Price and Elizabeth Blanche ...; it belonged to Mr Daniel De Jersey, one of the seizors of the estate of Mr Abraham Le Messurier of London, who was heir in part of his mother, Dame Rebecca De Saumarez, who was herself heir in part of her niece, Dame Marie De Saumarez, who was sole heir of her father, Mr Jean De Saumarez, having obtained by transfer rights belonging to William Le Marchant, Esq., son of Josias, the principal heir (legally representing his late father Mr William Le Marchant) of his grandfather, William Le Marchant, Esq., son of Josias, according to a contract &c &c. [From the French.]

Further information on Guernsey law of this period may be found in the works of the contemporary advocate and legal author, Peter Jeremie, in the Library, in addition to the Commissioners' Report.