
    Main vs. Feathers.
    A covenant to pay the rent reserved in a lease in fee runs with the land; and an action will lie thereon, in favor of the assignee of the lessor, against an assignee of the lessee.
    Where the assignee of a lessee is in the possession of the demised premises, and in the annual receipt of the issues and profits of the land, it is contrary to equity that he should he relieved from paying, for it, the price stipulated and reserved.
    DEMURRER to complaint. The action was for arrears of rent, reserved in and by a lease in fee, from Stephen Van Rensselaer to John Chamberlin; in which lease there was a covenant that the lessee and his heirs, representatives and assigns, would forever pay to the lessor, his heirs or assigns, the rent, from year to year ; and that for non-payment, the lessor, Ms heirs, &c. might distrain, re-enter, &c. The plaintiff was (by mesne assignments) assignee of the lessor ; and the defendant was (by mesne assignments) assignee of the lessee, in part, and occupied a part of the premises leased.
    
      C. H. Denio, for the plaintiff.
    
      A. Bingham, for the defendant.
   Gould, J.

For the defendant it was claimed, (among other things,) that there having been in the lessor, after he executed the lease, no reversion, there was no estate remaining to him; and so there was no privity of estate between the lessor and the lessee, and could be none between their 'respective assignees, and this action could not lie. That under our present law, where there is no reversion in the lessor, the rent is a rent-seck, and the lessor’s only remedy for it is an action on the covenant against the covenantor, personally ; or, which is the same point, that this covenant to pay rent, (it being a rentseck,) as there is no privity of estate between the parties to it, does not run with the land ; but is a mere personal covenant. The points, as to apportionment (between assignees of different parts of the premises leased,) and as to the right of W. P. Van Rensselaer’s trustees to assign, &c. were not insisted on, and the demurrer was left to stand on the points above, which were claimed to reach to the conclusion that, so far as the land and its owners and occupants are concerned, the obligation to pay any rent, to anybody, was utterly extinct.

Of this case it is proper to remark, in the outset, that there is no equity in the defense. It is well said (17 Wend. 150) that a covenant of warranty runs with the land, because it makes a part of its value, (the value of the estate to the grantee,) and is it not as true, that a covenant to pay rent, lessening the value, has diminished the price paid by the grantee, and should it not, by parity of reasoning, run with the land ? Further, the defendant is in the possession of the demised premises, and in the annual receipt of the issues and profits of the land, the receipt of which is, always, the true consideration of every agreement and of every obligation to pay rent, and the real basis of every action to enforce such payment. (Gould's Plead. ch. 6, pt. 1, § 13.) And it is as much against sound morality and sound law, as it is against the plain common sense of the community, to say that he who receives the benefit should be relieved, from paying for it the price stipulated and reserved. Ho thing but some unbending legal rule, will force courts to give any such decision. If in this case such a rule be found, then, and then only, will the demurrer be sustained.

The defendant claims that although (as will be hereafter noted) the decisions of our highest courts, even down to the latest reported cases, speak of such covenants to pay rent (in leases in fee) as '“running with the land,” there has really been, in them all, an entire overlooking of the true principle, which is to be deduced thus: By the law of 1787 (1 Rev. Laws, p. 70) the tenure of lands in this state was entirely ■changed; feudal tenures, fealty, services or restraints on alienation, were abolished, and services charged on lands, passing by the freeholder grantor, were to be ■“ to the chief lord,” or paramount title; which paramount title was declared to be in the .state. Thus it is claimed that rent-service is abolished in this state, and that a mere rent in fee can only be a rent-seck. And it being conceded that a covenant to pay a rent-seck, (technically such,) is not a covenant running with the land, but the remedy therefor is merely personal, therefore, all rents in fee, in this state, are charges merely personal, on the covenanter; and the covenant to pay them does not run with the land. This view of the case entirely overlooks the description of rent known as a rent-charge; one as long and as well known as either of the others. (Litt. § 213.) It is true that, on the argument of this demurrer, the counsel for the defendant claimed, (which is not noted in his points,) that there is now, since the statute of 1846, (Sess. L. of 1846, p. 369,) no such thing, in this state, as a rent-charge ; as by that act “ distress far rent is abolished.” But that act merely takes away the remedy by actual distress. It by -no means touches, or attempts to touch, the reservation, or the right. So far .from it, the third section of that act provides a substitute for the proceeding by distress (in certain cases) in a notice there specified. A rent-charge remains then, as it always has been, “ a yearly rent issuing out of land held by another in fee, (in tail, for life, or years,) with a clause of distress ; this is. a rent-charge, because the lands are charged with a distress, by the express grant or provision of the parties.” (Litt. § 217. Jacob’s Law Dict. “ Rent,” 1.) And the broad distinction between such rent and a rent-seck, is laid down in the immediate connection: “ if the grant be without a clause of distress, then it is a rent seek, for that no distress is incident unto it.” (Litt. §218. Jacob, ubi sup.) The same distinction, on principle, holds where, by express covenant, or by words of reservation, there is a right of re-entry for non-payment of a rent, (in fee.) For it would be as absurd to say that, though for non-payment you may re-enter on, and take, the land, still the covenant to pay is one which does not run with the land—(in other words, its fulfillment, or the penalty for non-fulfillment, is not connected with, or attached upon, the land)—as it would be to say, that where for non-payment you may enter on the land, and take therefrom any distraindble property to satisfy the rent, still the covenant which gives you such a right in the land, does not run with the land. The bare statement of either of the latter propositions, shows the utter absurdity of saying that the covenant is one merely personal, and to be performed by the covenanter, irrespective of the title, or holding, of the land. That the entire reasoning, as well as the decisions of the later cases in our courts, proceed substantially on the principles I have stated, will be found on a reference to them. The case in 4 Denio, 405, does, indeed, decide that the lessor’s interest in such a rent, is not such an interest in land as could be sold on execution. But it goes no further. It says his interest is “an incorporeal hereditament;” not, by our statute, one on which a judgment is a lien. But it does not say that his interest is a non-entity. Hone of these cases goes any further than this ; while at the same time, most of them do say that the covenant to pay rent in fee runs with the land. (See 3 Denio, 141; 23 Wend. 506; 11 Barb. 592; 20 id. 269; 3 Selden, 506, 507; 2 Kern. 296, 300 to 303.) (a)

There is a further point in this case, which is, on principle, equally fatal to the demurrer. By the lease from Stephen Van Rensselaer the land is granted in fee, “ yielding and paying” a yearly rent forever. It would seem rather difficult to hold that these words mean any thing else than that the payment of such annual rent was attached to, and a condition of the fee; for breach of which condition, a forfeiture and re-entry could be had at common law, without the subsequent covenant for a re-entry. And I cannot see why the assignee of the lessee is not fully within the spirit of Littleton’s rule, (Lift. § 374,) for, though “ he never sealed any part of the indenture,” he is liable, because “inasmuch as he entered and agreed to have the lands by force of the indenture, he is bound to perform the conditions within the same indenture, if he will have the land.”

(a) An assignment by the lessor, of the rent of leasehold premises, creates such a privity of estate between the assignee and the lessee that the former may maintain a suit in his own name for the rent which accrues and becomes payable, while such privity of estate exists. ( Childs v. Clark, 3 Barb. Ch. 52.)

[Rensselaer Special Term,

April 14, 1856.

There are several divisions of points made, as to the valid assignment of the estate in these rents, and of the right to sue for these rents. But it can hardly, at this time and under the code, be held that the plaintiff’s right of action, (provided the prior portions of this opinion be sound,) is even questionable.

The demurrer must be overruled.

Gouldt Justice.]  