
    Kunckle v. Wynick.
    An action of covenant will lie against a lessee, on an express covenant for payment of ground-rent, although after an assignment by him of the term, and although the lessor has accepted rent from the assignee.
    Covenant. The argument arose upon the following ease stated for the opinion of the court : “ John Kunckle, on the 7th day of Oct. 1784, conveyed to Nicholas Wynick, in fee simple, a lot of ground *in the Northern Liberties of the city of Philadelphia, reserving a rent-[*306 charge of forty dollars per annum, payable on the first day of October annually. Before any rent was due, Nicholas Wynick, on the 15th of July 1785, assigned and conveyed all his interest in the premises to Henry Myers. The plaintiff accepted one year’s rent of the assignee. The question is, whether he can recover in the present action, which is for one year’s rent accruing subsequently to that paid ?”
    The conveyance from Kunckle to Wynick contained the following clause: “ And the said Nicholas Wynick, for himself, his heirs, executors and administrators, doth hereby covenant, promise and agree, to and with the said John Kunckle, his heirs and assigns, that he, the said Nicholas Wynick, his heirs, or assigns, shall and will, at his and their own expense, within one year from the date hereof, erect, build and finish, on the hereby-granted lot, one good substantial dwelling-house, at least sixteen feet square and two stories high, with a cellar under the same, walled up with brick or stone ■; and shall and will, from time to time, and at all times hereafter for ever, well and truly pay, or cause to be paid, unto the said John'Kunckle, his heirs or assigns, the aforesaid yearly rent or sum of forty dollars,” &c.
    
      JRawle, for the defendant,
    made two points : 1st, Whether the sentences in the clause above stated from the deed, could be so coupled and interwoven, as to create an express covenant on the part of the grantor, that his assigns should pay the rent-charge? and 2d, Whether acceptance of rent from the assignee, was not a bar of the plaintiff’s demand of the rent from the assignor ?
    1. On the first point he endeavored to construe the covenant, so as to extend it to the assigns of Wynick, only in the case of building the dwelling-house, and not in the case of paying the rent. But he did not seem to expect much success from this discrimination.
    2. On the second point, he argued, that this was a rent issuing out of the land, which the plaintiff had elected to pursue, by his acceptance of rent from the assignee; and that this acceptance was a bar to his demand against the defendant. Cro. Jac. 522; 3 Co. 22; 2 Bulstr. 152. He admitted, that 3 Lev. 233, s. c. Saund. 240, appeared to be strong against him; but contended, that in truth, they ought not to have any weight with the court, since the present question was not immediately in agitation in those cases, and consequently, what has not been expressly adjudged, cannot be set up as an authority. As 1 Bac. Abr. 536, is founded on 3 Lev. 233, it must necessarily follow the fate of its principal. With respect to Keb. 640, he presumed, that the reporter had been guilty of some, mistake, and questioned whether his doctrine had been received even in England.
    But he urged, that whatever might be the practice there, the laws and circumstances of Pennsylvania had rendered a different one necessary here ; for the acts of assembly, altering the common law, carried with them many consequences, which were not expressly provided for in the acts themselves ; as in the case of real estates made *subject to executions for J debt, and in the case of a devastavit committed by an administrator. He insisted, that the policy of the laws of this state was to facilitate the transfer of lands, in contradiction to the genius of the common law; that, therefore, it might be incumbent upon the English courts to enforce with the greatest strictness the express covenants in a conveyance ; but that our courts ought rather to construe them liberally, so as to prevent unnecessary embarrassments in the change of property. If, then, the defendant is liable for the last year’s rent, he must be liable, by the same rule, for the rent of forty years’ standing, and thus, as the grantor of a rent-charge can never be exonerated, or even safe in the disposal of the estate from which it issues, the restraints on sales and transfers will become daily more numerous, and more injurious to the public welfare.
    
      Millegan, for the plaintiff,
    observed, that as the first point was a matter of mere construction, he should leave it implicitly to the court.
    With respect to the second point, he contended, that the difficulty had arisen from not distinguishing properly between actions of debt and actions of covenant : For, he granted, that an action of debt would not lie in this case ; as it requires privity of estate to support it; but that the action of covenant required only privity of contract, and, therefore, would well lie against the grantor of the rent charge, after his assignment. In support of this distinction he cited 1 Roll. Abr. 522; Cro. Car. 580; 1 Saund. 240; 2 Keb. 640; 1 Bac. Abr. 536., tit. Covenant; Cro. Jac. 309; Sid. 402.
   Shippen, President.

The question in this case is, whether on a ground-rent deed, wherein there is. an express covenant on the part of the lessee for payment of the rent, and he assigns over the premises, and the lessor accepts rent from the assignee, an action of covenant will lie for the lessor against the lessee, for the subsequent rent.

The distinction between actions of debt and actions of covenant in this case, is too well established to be now unsettled. The action of debt lies upon the privity of estate, which is utterly extinguished between the lessor and lessee, by the lessor’s acceptance of rent from the assignee. The action of covenant, when founded upon an express covenant, lies not upon the privity of estate, but privity of contract, which cannot, by the assignment of the premises, or by any act of the lessee, or by acceptance of the rent, be transferred from him. The covenant, however, must be an express covenant, not an implied one, or a covenant arising by operation of law, as by the words “ yielding and paying ” &c., in the deed.

The cases in the books upon this point are generally of actions of covenant for not making repairs ; and a distinction has been attempted to be made "between those and actions for the rent; in the latter case it is said, that the land being the fund out of which the rent is to issue, and that being * , transferred, the lessor’s acceptance of *rent from the assignee will ■J take away all remedy against the lessee himself. I have looked for this distinction in the books, but cannot find it in any case where there was an express covenant for the payment of the rent. The cases found the law upon the personality of the contract; which extends equally to the payment of the rent, as to the making repairs; and though the authorities are not so numerous in the one case as the other, yet they are as express. 2 Keb. 240, and 2 Barnard. 372, are full to the point. If these books are thought to be of doubtful authority, 1 Roll. Ab. 522, cites two cases, where the breach of covenant was for non-payment of the rent. In 1 Sid. 402, where the court draws the distinction between debt and covenant, they expressly mention the action to be for the rent; and the case in 3 Lev. 283, is likewise covenant for non-payment of the rent.

As to the argument ab inconvenienti, I cannot see how it operates more in this country than in England. If lessees mean not to be personally bound, after assignment, they should take care what covenants they enter into. If they will, in express words, covenant for the payment of the rent, they must be bound by it. Judgment for the plaintiff, 
      
       See Phillips v. Clarkson, 3 Yeates 128; Hazlehurst v. Kenrick, 6 S. & R. 446; Pollard v. Shaffer, ante, p. 210.
      
     
      
       To the same effect, see Dewey v. Dupuy, 2 W. & S. 553; Ghegan v. Young, 23 Penn. St. 18; Frank v. Maguire, 42 Id. 77; Kuper v. Booth, 10 W. N. C. 79.
     