
    John Philips assignee against Matthew Clarkson and Edward Bonsall.
    A grants lands to B, subject to a yearly rent charge, with right of entry into the premises, to hold until the rent is paid, and B covenants to pay the yearly rent to A, his heirs and assigns. B grants the lands to C, subject to the first rent and to a new created rent payable to himself, and conveys the last rent to W, who afterwards becomes entitled to part of the first rent under his father’s and mother’s wills, no part of the first rent is extinguished hereby.
    Case stated for the opinion of the court.
    Joseph Morris and wife, on the 3d August 1774, conveyed a lot of ground situate in China street, in the county of Philadelphia, to the defendants, Matthew Clarkson and Edward Bonsall, in fee ; reserving a rent charge thereout of forty dollars per an-num. The grantees expressly covenant to pay the said rent charge to the said Joseph 'Morris, his heirs and assigns forever, on the first day of June yearly, the first year’s rent to be paid on the 1st June 1776, (prout deed.) A right of entry was reserved to hold till the rent paid.
    The said Joseph Morris and wife, by deed dated the 21st October 1776, convey and assign this rent charge, (inter alia,) with the right of entry, &c. to Thomas White, in fee. (Proiit deed.)
    The said Thomas White, being so seized of this rent charge, by a codicil to his will dated November 6th 1776, devises it to his wife Esther White, his son William White, and his daughters Sarah Charlotte White and Mary Morris and their heirs, equally to be divided between them; but if his daughter Sarah Charlotte dies before him, without issue, her share to be divided between her other sisters and her brother. (Protit codicil.) Her sisters were Sophia Hall and the said Mary Morris.
    *By a second codicil, dated 26th March 1778, the said p Thomas White mentions the death of his daughter Sarah L ^ Charlotte, and devises the fourth part of the said rent charge to his wife Esther, his son William, and daughters Sophia and Mary in fee. (Prout codicil.)
    The said Thomas White died, seized of the said rent charge, on the 29th September 1779.
    Sophia Hall, widow, one of the devisees aforesaid, on the 30th April 1782, conveys and assigns her share of the said rent charge, and all arrearages to her mother Esther White, in fee simple. (Prout deed.)
    The said Esther White afterwards made her last will, dated 27th July 1790, wherein she devises the residue of her estate to her son William, and daughter Mary, in fee, as tenants in common. (Prout will.)
    The said William White and wife, and Robert Morris, and the aforesaid Mary, his wife, by deed, dated 18th December 1795, for a valuable consideration, convey and assign the said rent charge, and all arrearages thereof, with all their right of entry, and other legal means to recover the same, to the plaintiff John Philips in fee. {Prout deed.)
    For the arrearages of this rent charge, from the 29th September 1779, till the time of bringing this action, being eighteen years, is the present action brought, on the express covenant of the defendants to pay the same to the said Joseph Morris, his heirs and assigns, forever.
    But the defendants contend, that the right of action has beer, extinguished and cannot revive; because the defendants Matthew Clarkson and wife, and Edward Bonsall and wife, by their deed, dated 20th September 1775, granted the same lot to a certain Morgan Busteed, subject to the said rent charge of 40 dollars per annum, payable as aforesaid, and reserving a rent charge of 40 dollars per annum, additional, payable to themselves, in fee. {Prout deed.)
    And on the 26th June 1779, the said defendants, in consideration of 300I. continental currency, equal to 15I. specie, conveyed and assigned the same rent charge of 40 dollars, and all their estate, right, title, &c. in the premises, to the before mentioned William White, one of the assignees to the plaintiff, in fee. (Prout deed.)'
    And the said William White remained seized in fee of the said new created rent charge, and also entitled as one of the de-visees of the said Thomas White and Esther White, to a right of entry, in case the first rent charge was not paid until the 18th December 1795, when by deed, in consideration nominally of *5s., but the real consideration 1500 dollars, the said Wil- p g liam White conveyed the last mentioned rent charge, and L all arrearages thereof, to the said John Philips, the plaintiff, in fee.
    
      Mr. Todd, pro quer.
    
    Unless the jriaintiff succeeds in the present form of action he is without remedy. Busteed has died insolvent, and the ground is vacant.
    It may be objected, that the whole of the second rent of 40 dollars per annum, became vested in William White by the defendants’ conveyance, and that he became entitled to five sixteenth parts of the original rent, under the codicils to his father’s will, and to three sixteenths under his mother’s will, and that therefore the original rent, or one moiety thereof, is become extinct. It is true, that three months before his father’s death, he bought in the second rent, with a power of re-entry; but he never was seized of the right of soil, out of which the rent charge issued. On his father’s death he held two independent interests in the two species of rents, a claim to the whole of the second rent, resting in himself alone, and a claim to a part of the original rent as a tenant in common. Dr. William White had but a mere right of entry under the defendant’s conveyance, which he never executed, nor became the possessor of the lands which belong to the heirs of Busteed, and consequently never became responsible for the original rent. This suit is founded on the express covenant of the defendants to pay to Joseph Morris, his heirs and assigns, the yearly rent charge of 40 dollars. Nothing can be clearer than that an express covenant binds the party in a lease, though the lessee assigns it over. The obligation on such covenant continues, and the lessor shall not be deprived of his action on the covenant to which he trusted, by an act to which he cannot object. 4 Term Rep. 94, 98. It is agreed, that the lord cannot have. the land and the rent at the same time ; but if the conveyance from the lessee to the lessor be not absolute, but upon condition, as if it were only of a particular estate of shorter duration than the estate which the lessor had in the rent, the union of the tenancy and rent being only temporary, the rent is suspended and not extinguished. 2 Bac. Ab. 448. Tit. Extinguishment A. Vaugh. 39, 199. Pollexf. 142. To work an extinguishment of the rent there must be a complete holding of the premises by the lord, as fully as he held the rent. Gilb. on Rents 149, 150. If a re-demise of the premises is made by the tenant to the lessor, he paying a new rent, the old rent continues, and no part of the rent on the first contract shall be suspended; because the tenant has substituted a consideration in the place of the land, which was the * *1 original consideration of the entire rent* *Ib. 180, 1. 7J 1 Vent. 276. The reason her the case before the court. here given will fully controul
    Mr. Rawle, pro def
    
    The plaintiff has made a speculating bargain, and must abide by its legal consequences. It is contended on our part, that as to one half at least of the rent demanded, the same is extinguished on the principle of apportionment, and that the plaintiff is precluded from recovering the other moiety on the ground of circuity of dction.
    Dr. William White held the second rent charge for sixteen years absolutely, and during great part of this time had a right of entry at first as to five sixteenths, and afterwards as to one half of the original rent charge. He had an absolute and not a conditional or temporary estate; and the case-must be considered as if the defendants had not granted over to Busteed. The grant of the profits of land is a grant of the land itself. Dr. White could make the same entry as to his proportion of the rent, which his father might have made. Co-parceners may maintain separate actions for rent, and debt lies on a privity of interest. Now the present suit is founded on the neglect of William White, in not paying the first rent charge. If he could not support this action, neither can the plaintiff; for Dr. White stands in the same situation as the defendants formerly occupied. The latter cannot be supposed to be responsible for the original rents, after having re-demised the premises on new rents, and conveying the same and all their interests and rights to one of the proprietors of the first rents. If one have a rent charge issuing out of certain lands to him and his heirs, and purchase any parcel thereof to him and his heirs, the rent charge is extinguished. Litt. § 222. But if the father purchase parcel of the tenements charged in fee and die, and this parcel descends to the son who has the rent charge, this charge shall be apportioned according to the value of the land. Litt. § 224.
    Again, as to a moiety of the rent demanded, if the defendants should pay the same, they might recover back the- amount from Dr. William White, who ought to have procured the payment thereof. This proceeding consequently would be idle and vain.
    The policy of the law does not permit circuity of action. 4 Vin. Ab. 532. A having declared on a promissory note against B, made by C to A, and by him indorsed to B, and by him again indorsed to A, and having obtained a verdict, judgment was arrested ; because B would be entitled to recover back again from A as the first indorser, the identical sum for which he obtained the verdict. 4 Term Rep. 470.
   * Yeates, J.

delivered the opinion of the court, in the absence of the chief justice. The same party cannot be [*128 payer and receiver. Hence arises the law, that when the title to the rent, and the possession of the premises out of which it issues, are united in one person, the former is extinguished. But here the case is different. Dr. William White came in as assignee of the newly created rent, and if he made a re-entry on the premises, could only hold the same until the rents were paid. The property of the ground continued in Busteed and his heirs, subject to the payment of both species of rents. The fallacy of the defendants’ reasoning, rests in making the grant of the newly created rent, tantamount to the re-assignment of the land itself. Dr. White had only a qualified and conditional estate on his re-entry, and" in such case, he would be personally responsible only for the period during which he held the ground on privity of estate. The defendants are answerable from their privity of contract; and cannot reasonably complain that their own covenant is enforced against them. According to the case cited and Cunckle v. Wynick, (1 Dall. 305,) where the lessee expressly covenants to pay the rent and assigns over, and the lessor accepts rent from the assignee, an action will lie against the lessee for the subsequent rent. The passages cited from Gilbert’s treatise on rents, fully establish the plaintiff’s right to recover the eighteen years rent in arrear.

Referred to in 1 Wh. 351.

Judgment for the plaintiff.  