
    CHARLES WEIDNER against WILLIAM B. FOSTER.
    IN ERROR.
    The recol-d of a judgment, confessed by a tenant to his landlord, is competent evidence to establish the fact, that the relation of landlord and tenant was recognized by the lessee. - , .
    A mortgage of a rent charge, is but a security for the debt; and without possession or demand of payment, does'not amount to an absolute transfer.
    An assignee of a lessee is only liable in resp.ect of his possession, for he bears the burden only, while he enjoys the benefit. ' But under an absolute assignment, the-title and possessory right pass, and the assignee' bec'omes possessed in law. As to actual possession, that must depend upon the nature of the property. • .
    Covenant will lie against an assignee of part of the thing demised*
    Error to the Common Pleas óf Allegheny County.
    This was an action of covenant,, brought by the defendant'int error, tu recover from the plaintiff in error, one half year’s, ground rent of á lot in’the city of Pittsburg. . A
    
      William B. Foster being the owner of a lot of. ground, on 1he 17th June, 1814, by an indenture executed between him and 
      Robert and Thomas Tachaberry, he demised the same in a perpetual lease unto the said Robert and 'Thomas “from the said 17th June, 1814, during the existence of the world,” they yielding and paying therefor yearly and every year to the said William-B. Foster, his heirs or assigns, the rent of $150, in half-yearly payments. On the 1st October, 1814, Robert and Thomas Tacha-berry granted and demised in perpetual lease the one half- of said lot to John Johnston, he thereby covenanting to pay to the said Robert and Thomas their heir or assigns the annual rent of $100 payable in half yearly payments. On the 2d March 1810 Robert and Thomas Tachaberry assigned to Robert M’Elheny all their right, title, claim and interest in the other half of said lot; and also the annual rent of $100, which was payable to them out of the half demised to John Johnston; he the said Robert M’Elheny then covenanting to pay the said yearly rent of $150 unto the said William B. Foster. On the 31st December, 1816, Robert M’Elheny assigned all his interest in the said half lot, and also his right to the ground rent of $100 per annum, in, th,e other half of said lot, unto Charles Weidner, the plaintiff in error, he covenanting thereby with the said Robert M’Elheny to pay the said annual rent of $150 to the said William B. Foster, his heirs and assigns.
    % The'plaintiff, after having given in evidence the said several deeds, offered in evidence the record of two suits, which had been brought by him against the present defendant, and in one of which Robert M’Elheny was also a defendant, for rent in arrear ; and that the defendant had confessed a judgment upon the docket of the alderman. This evidence.the defendant objected to'; but the objection was over-ruled and exception taken.
    It was also in evidence that the part of the lot out of which the rent in arrear was payable, was vacant.
    The defendant offered in evidence the record of a mortgage from ‘Foster and wife, to the bank of the U. S., dated 12th Feb., ISIS, for the rents, issues and profits arising out of- the property in question ; and also offered to prove by Mrs Johnston, that the bank had been receiving the rents from her (she being- in possession of part of the premises, originally rented hy Foster to Tachaberry) for some lime previous, and since the date of the mortgage. ' ■’1 ,
    The plaintiff objected to this evidence, which was o^er-ruled by the Court and exception, taken by the defendant._
    The defendant’s counsel requested the.Court to charge the jury, .
    1st. That the privity of estate, as between Foster and Weid-'ner, was destroyed, by the perpetual lease, made by Thomas and Robert tachaberry to John Johnston, reserving a rent of $100 per annum, payable to said Thomas and Robert, which lease was read'in evidence on the part of the plaintiff.
    2d. That unless the defendant occupied or possessed the property, he is not liable to the plaintiff, either in debt or covenant.
    On both these points the opinion of the Court below was against the defendant. Which, together with the receiving and rejecting the evidence, as contained in the ñrst and second bills of exception, were here assigned as error.
    
      Watson for plaintiff in error.
    The record of the suit before the Alderman should not have been received in evidence; it was not material. Coe V. Hutton, 1 Serg. & Raiole, 398. Fankirk v. Clark, 16 Serg & Rawle, 291. It was not the best evidence which could have been given, of the facts wished to be established, and therefore error. Galbraith v. Black, 4 Serg. & Rawle, 211. 1 Stark. Ev. 190.
    The mortgage should have been received in evidence, to shew, that the plaintiff had parted with all interest in the thing for which he sued ; and that the bank of the United States alone, had the right to receive the arrears of rent. And the evidence was not objectionable on account of the pleadings; for the plea of payment, in Pennsylvania, will cover every equitable defence, which can be made under a special plea. Lyon v. Hun. Bank, 14 Serg. & Rawle, 2S5. Robinson v. Eldridge, 10 Serg. & Rawle, 142.
    There was neither privity of contract, nor of estate, between the parties ; and therefore there eould be no recovery. 1 Chit. Plea. 261. 1 Strange, 405. 2 Esp. 151.
    Possession by the tenant is essential to his liability to pay a rent charge. 2 Blac. Com. 40. In all cases it must be laid in the declaration that the defendant is possessed. 1 Chit. Plea. 261. Plea. ,ñss. 237. 1 Saund. 237. 1 Wash. Ct. Cl. Rep. 375.
    
    
      Burke for defendant in error.
    It was important to shew, that Weidner had accepted Foster as his landlord ; and Stronger evidence of that fact could not be given, than thal a claim being made upon him by Foster, he co’n-fessed judgment for the rent.
    The mortgage Was a mere security for money, ánd did riot transfer the right or possession in the thing mortgaged: but if it was otherwise competent evidence, it could not have been received from a tenant, to defeat the title of his landlord.
    Possession- by tenant is not essential to his liability. WoodfalVs Land. & Ten. 348. An assignee of part of the estate, is liable in covenant, for his proportion of the rent. 3 Com-i Dig. 259/ title, Covenant, letter C. 3. Douglass, 461-2, in note. 1 Chit-Plea. 88. 3 Colee, 22, B. It is not necessary to lay an entry by the lessee or his assignee.' 2 Chit. Plea. 186.
    This action of covenant is rightly brought. 1 Kunclcle V» Wynich.
    
   The opinion of the Court was delivered by

Rogers, J.

We see no error- in the admission of the record-of the suit for the arrears of rent; for it is evidence that the relation of landlord and tenant was recognized by the lessor and by the assigneeFoster- by the institution of the suit,, and Weidner by the confession, of judgment.

If it had been proved, that the bank- had given the defendant’ .notice, before suit brought,, to pay them the rent, then the mortgage would have been material evidence:- but in the absence of' any proof of the kind, or evidence of objection on the part of the bank, Foster had a right to receive the money; and a pay-.men.t to him will protect the defendant. And this is all he has aright to require, inasmuch as it is- nofr disputed, that the rent is in arrear. A mortgage of a rent charge is but a- security for a debt; and,, without possession, or demand of payment, does not amount to an absolute transfer. In this particular; I perceive no-difference between a'mortgage of land., and of a rent charge issuing out of land: the latter partakes of the realty; and whatever may be the authority of Brown v. Bement, 8 John. 96, it mattei’S not,, as we conceive it does not affect the principle of this ease.

An assignee is only liable in respect- of his-possession, for he bears the burden only, while he enjoys the benefit. But under an absolute assignment the assignee is liable, before he has- taken actual possession ; for by the assignment, the title and possessory right pass, and the assignee becomes possessed in law. As to the actual possession, that must depend on the nature of the property ; as in the case of waste, unprofitable or vacant ground, or ground intended to be built upon.

, A covenant may be assigned and follow the land. It has been ruled, that covenant will lie against an assignee of part of the thing demised. As when two houses are demised, with a covenant on the part of the lessee, for himself and-assigns to repair; the lessee assigned one of them; and for not repairing, the lessor brought covenant against the'assignee ; which action was held well to lie. And this can work no injustice, as the assignee of part is not liable for rent, for the whole, and only while he is legal as.-signee. Woodfall’s Landlord & Tenant, 348, 349, 350, and the authorities there cited'.

Judgment affirmed.  