
    Provident Life and Trust Co. of Phila., Ex’r, v. Loftus.
    In an action of assumpsit, the declaration averred as follows: The owner ■of a lot, subject to a ground rent, conveyed a portion of the lot, reserving a ■second grou/nd rent and making a covenant of i/ndemnity against the paramount rent and giving a right of entry and distress upon the remainder of the lot as security. The title to the second ground rent having become vested in the plaintiff and the title to the remaining portion of the lot of ground being in the defendant, and large sums of both ground rents being in arrear, the defendant, for the purpose of compelling the tenant of the smaller lot to apply the amount due the plaintiff to the payment of the defendant’s indebtedness, neglected and. refused "to pay his ground rent, whereujDon the owner of the larger ground rent collected a XDortion of his ground rent from the owner of the smaller lot, by means whereof the plaintiff was prevented from collecting his ground rent and the defendant was relieved and discharged from that much ground rent, by means whereof the ■defendant became liable to pay the plaintiff this money and, being so liable, promised, etc. Meld, that the declaration was insufficient and that, on demurrer, judgment should be entered for defendant.
    
      It seems, that the plaintiff, in averring title, in such case, should make profert of the deeds.
    Jan. 15, 1888.
    Error, No. 115, July T. 1887, to C. P. No. 4, Pbila. Co., to review a judgment on a demurrer to the declaration, in an action of assumpsit, at March T. 1883, No. 132.
    The declaration consisted of two special counts, to which the ■defendant demurred. The court below sustained the demurrer, in the following opinion, which sufficiently states the pleadings,' by Thayer, P. J.:
    
      “ This is an action on the case, and the plaintiffs cause of action, ■stripped of its formalities, is thus stated in his first count. On June 29, 1785, John Penn, Esq., and John Penn, Jr., conveyed to John Kunckel, in fee, a lot of ground on the north side of Callowhill ■Street and east side of Fourth Street, containing, in breadth on Fourth Street, seventy-two feet, and, in depth, on Callowhill Street, ninety feet, reserving thereout a yearly ground rent of $88, payable to the said John Penn, Esq., and John Penn, Jr., their heirs and assigns, on the 29th of June of every year. On August 1,1786, the ■said John Kunckel and wife conveyed the same lot of ground to Christian Knies and Jacob Ettwein, in fee, as tenants in common, subject to the aforesaid ground rent of $88 per annum. Afterward Christian Knies and wife and Jacob Ettwein and wife, by three several indentures, dated respectively August 3, August 7 and August 7, 1786, conveyed in fee to Peter Fiss, Philip Wink and John Ware respectively, three several lots of ground, parcel of the large lot aforesaid, at Fourth and Callowhill Streets, each of the said three lots containing eighteen feet on Callowhill Street, by seventy-two feet deep, reserving out of each of said smaller lots a yearly ground rent of $18, payable to the said Christian Knies and Jacob ttwein, their heirs and assigns, on the 29th of June of every year, the said Knies and Ettwein covenanting, in each of said deeds, for themselves, their respective heirs, executors and administrators, with the several grantees named in said deeds respectively, that they, the said Christian Knies and Jacob Ettwein, their respective heirs, executors and administrators, would, at all times thereafter, indemnify and save harmless the said grantee, his heirs and assigns, and his and their goods and chattels, lands and tenements, and especially the lot of ground thereby granted, from the said paramount ground rent of $88 payable to John Penn, Esq., and John Penn,-Jr., their heirs and assigns, and from all costs, suits, entries, distresses, loss or damage on account of the non-payment thereof, so that if at any time any entry or distress should be made upon the thereby granted lots for the said paramount ground rent, then it should be lawful for the grantee, his heirs and assigns, to enter and distrain in and upon their, the said Christian Knies and Jacob Ettwein, the remaining westernmost part of said whole lot, and sell and dispose of the distress there taken, or sue for and recover the loss or damage by action of debt or. covenant. The count then goes on to aver that afterward, on the 20th of March, 1875, the title of said Christian Knies and Jacob Ettwein, to the aforesaid three yearly ground rents of $18 each, became vested in the plaintiff, by divers mesne conveyances, and that the title of the said Christian Knies and Jacob Ettwein, to the westernmost thirty-six feet of the large lot first described, became vested, by sundry mesne conveyances, in the defendant, in fee, subject to the payment of the whole of the ground rent of $88 per annum, and that, afterward, on March 2d, 1883, a large amount of the $88 ground rent became due and was in arrear by the defendant; that a large amount of the said ground rent reserved in the said three $18 ground rents also became due and was in arrear to the plaintiff from the tenants of the said three lots of ground, but that the defendant, for the purpose of compelling the tenants of the said three smaller lots to apply the money due to the plaintiff to the payment of the defendant’s indebtedness for the arrears of the $88 ground rent, neglected and refused to pay a large portion of the said ground rent of $88, to wit, the sum of $5,000, whereupon the owner of the said $88 ground rent collected the same out of the three lots of ground upon which the said three $18 ground rents were payable, by distress, levied thereon, by means whereof the plaintiff was prevented from collecting a large portion of the said three ground rents of $18 each, to wit, $5,000, out of the said three lots of ground, and the defendant was relieved from so much of the ground rent of $88, by means whereof the defendant became liable to pay the plaintiff the money paid by the tenants of the said three lots to the owner of the ground rent of $88, and, being so liable, the defendant on, etc., promised, etc.
    “No precedent has been shown to us which sustains such a cause of action as is here set up, and we know of no principle or authority upon which it can be maintained. If the action was covenant, and the plaintiff was the terre tenant of one of the three lots of ground out of which the ground rent of $18 was reserved, deducing his title from the grantee of Christian Knies and Jacob Ettwein under the deed of 1786, an interesting question might have arisen, whether the covenant of indemnity against the paramount ground rent entered into by Knies and Ettwein for themselves, their heirs, executors, and' administrators, with their grantee, is a •covenant running with the land, the burden of which would have fallen upon the defendant as the alienee and present owner of the larger lot of ground out of which the small lots were carved. Such an inquiry would have ushered us into that wilderness of law beginning with Spencer’s Case, 5 Coke, 16, in 1583, and extending, in an unbroken forest of cases, over the three centuries which have since elapsed. But that is not a domain into which a judge, who ■has any other business, will care to stray, unless he has a serious errand there, however attractive its dim recesses and perplexing Íaths may be to the legal philosopher and professional annotator. n the present case, it would be a work of supererogation to enter into the question whether the covenant of indemnity referred to runs with the land, and whether the burden of it can be imposed •upon the defendant, for the reason that this is neither an action of covenant nor debt, and if it were, and if it were conceded that the covenant ran with the land, it is too plain almost for argument that the plaintiff cannot maintain an action founded upon that covenant. He is-in no way privy to it, and is a total stranger to it. It is true that he derives his title to the ground-rents from the persons who made the covenant; but his privity with them relates exclusively to the ground rents. He has no privity with them in the covenant ■relating to the lands, for he has no ownership or estate in the lands, and for the same reason he has no privity with the defendant. The covenant of Knies and Ettwein was with the grantees of the land, the grantees to whom they conveyed the three lots of ground. It is not shown or alleged that they made any covenant whatever with the persons to whom they assigned the ground rents from whom the plaintiff derives his title to them. Upon what principle, then, can the holder of the ground rents claim the performance of a covenant ■not entered into with him or with the assignee of the rent under whom he claims, but with the grantee of the land only and his heirs and assigns ? Could Knies ana Ettwein in their capacity of owners of the large lot enter into a covenant with themselves as the owners of the small ground rents to indemnify themselves against the paramount ground rent ? Can a man make a covenant with himself which is assignable to the remotest generation? Could Knies and Ettwein, as owners of the small ground rents, sue themselves as owners of the large lot for a breach of covenant in not keeping down the $88 ground rent ? And is a covenant which is ■not suable assignable ? But even if Knies and Ettwein could do any of these extraordinary things there is no pretence in this 'declaration that they did it or attempted to do it. "What they did do was to covenant with the grantees of the three small lots of land to indemnify them and their heirs and assigns against the paramount ground rent; and if this covenant ran with the land, and the •burden of it also ran with it (for it is possible for a covenant to run with land for the benefit of the covenantee and his assigns against the covenantor and his executors and administrators, while the burden of the covenant will not run with it so as to charge the covenantor’s assigns, and there are many cases and much learning upon that subject), then the defendant would be liable upon such a covenant -to the subsequent owners of the lots of ground, but his liability would be to them only. The owner of the ground rents has no possible claim upon. him. He has no estate in the land and the covenant was not made with him or for his benefit. So far as he is concerned, he is an entire stranger to the covenant, having no privity of estate whatever with the defendant. He has an adequate remedy for the collection of his ground rents against the owners of the lots out of which they are reserved. If they are not paid, he-can re-enter, or distrain, or sell them upon a judgment obtained for the rent, but he has no claim whatever upon the defendant upon a covenant to which he is neither party nor privy, but which was made with other people for the protection of other interests. The; plaintiff, therefore* having no claim whatever against the defendant upon this covenant, even if'the action were rightly conceived, and was covenant and not case, the plaintiff’s cause of action is reduced to this, viz: A being indebted to B, and B being indebted, to C, A neglects to pay B, by reason of which B is unable to pay C. Thereon C sues A in an action on the case for his neglect to pay B. Is it necessary to waste words in showing that such an action will not lie ? If such a doctrine existed, it would set the whole community by the ears, for every man would be liable not only to his creditors, but to all the creditors of his creditors.
    
      “ The plaintiff’s second count differs from the first only in 'this, that, in the second count, after setting out the same deeds and covenant mentioned in the first count, he alleges that the defendant collected and received from the tenants of the three small lots of ground the rent of $18 reserved out of each of those lots. Now, if the plaintiff means by that that the defendant, by neglecting to pay the whole of the paramount ground rent, subjected the tenants of the three small lots to the payment of it, or a portion of it, and so got the benefit of that, then, as • I have already shown, the plaintiff has no cause of action against the defendant for that. The right of action for that, if there be any, is in the owners of the three small lots, and not in the plaintiff. But if the plaintiff means that the defendant collected the small ground rents in the plaintiff’s name, or on his behalf, or as his agent or under a pretence that he was the owner of the ground rents, then the plaintiff ought to say so, and how he collected them, whether by suit or otherwise, and in whose name and from whom, and by what authority, and in what manner. We will give him an opportunity to say so by amending his count, if he desires to say so. As it stands, the allegation is altogether toó vague and indefinite, especially when taken in connection with the inducement and all the preceding parts of the count.
    “ As these two counts are, in the judgment of the court, substantially bad, it is unnecessary-to discuss at length the alleged formal defects of the pleading, which are also assigned as causes of demurrer. I may remark, however, that, as the deeds which are referred to in the declaration are apparently made the ground upon which the plaintiff’s cause of action is supposed to rest, and the foundation of his claim, he was bound to make profert of such of them as are presumed to be in his possession, or to set forth a valid excuse for the omission. The demurrer upon that ground is well taken. While pleading remains a part of our system of administering justice, the rules which govern it, and which authority and long experience have established as necessary for its use and regulation, should be observed. It will be time to dispense with them when pleadings are abolished and all contests are reduced to the hazards and chances of an indiscriminate and free fight before a jury.
    “ The demurrers to the first and second counts are sustained, and the plaintiff has leave to amend within ten days, otherwise judgment will be entered for the defendant upon the demurrers.”
    Judgment was subsequently entered for the defendant, and the plaintiff took this writ.
    Pending these proceedings, the plaintiff, Lukens, died, and his executor, the Trust Co., was substituted.
    
      The assignments of error specified the action of the court in holding, 1, that, even if the burden of the covenant ran with the title of the corner property, the defendant would be liable to the owners of the three small lots only, and not to the owners of the three small ground rents; 2, that the plaintiff has an adequate remedy for the collection of his ground rents against the owners of the lots out of which they are reserved; 3, that the plaintiff was bound to make profert of the deeds; 4, in sustaining the demurrer; 5, in entering judgment for defendant; and, 6, in not entering judgment for plaintiff.
    
      Howard J. Lukens, with him John G. Johnson, for the plaintiff in error.
    It has been decided already that the covenant in these deeds ran with the title of the defendant’s lot and that thus the whole of the paramount rent was charged thereon. Lukens v. Fiss, C. P. No. 4, Phila, Co., 39 Leg. Int. 257.
    In that case, the suit was by the plaintiff in this case, against the owner of one of the small lots ; the defence was that the owner of the corner property had paid the whole of the paramount rent and that subsequently the defendant had made contribution to him. The court below held this no defense and the supreme court affirmed the decision, Peb. 5, 1883, in McConnell v. Lukens, in the following per curiam opinion:
    “ The payment by the plaintiff in error of the sum claimed for ground rent for the year in question was purely voluntary. It was made to one who at the time could not have enforced its collection. The payment thereof under the facts did not give him a right of action nor of set-off against the plaintiff-in-error.”
    It has been held, however, that when the owner of the paramount rent collects a portion from the owners of the three small lots, the latter may set-off the payments against the plaintiff. The paramount rent is collected in this way every year, and the defendant is thus relieved of a burden which he is legally bound to bear. That burden being imposed .upon the plaintiff, he can recover of the defendant in an action of assumpsit. Hogg v. Longstreth, 97 Pa, 255; Iron City Tool Works v. Long, 5 Cent. R. 502.
    The owner of the paramount rent has two funds to resort to : ■he can collect part of it from the three small lots, or he can collect it all from the defendant’s lot. The plaintiff can resort to the three small lots only. When the owner of the paramount rent elects the former course, the plaintiff is entitled to subrogation against the other fund, which is primarily liable. Wise v. Shepherd, 13 Ill. 41; Bisp. Eq., 4th ed., 404; Aldrich v. Cooper, 2 L. C. Eq., 4 Am. ed., 275, notes; Neff v. Miller, 8 Pa. 347; Lloyd v. Galbraith, 32 Pa. 103, 108; Bender v. George, 92 Pa. 36, 39.
    When the owners of the small lots are compelled to pay a portion of the paramount rent, they may reimburse themselves by proceeding against the defendant, or by setting off the payments against the plaintiff’s claim for rent. The plaintiff thus occupies the position of surety toward the owners of the small lots, the defendant being primarily liable. The plaintiff is therefore entitled to subrogation to the rights of the owners of the small lots against the defendant.
    Assumpsit is the proper form of action to take advantage of the right of subrogation. Dering v. Earl of Winchelsea, 1 L. C. Eq., 4th Am. ed., 145, notes; Rittenhouse v. Levering, 6 W. & S. 190.
    Profert of the deeds is not necessary, this being an action of assumpsit and the deeds being merely inducement. Banfill v. Leigh, 8 T. R. 571; Dangerfield v. Thomas, 9 A. & E., 36 E. C. L. 143 Duvall v. Craig, 2 Wheat. 45.
    
      Edward C. Quin, for the defendant in error.
    The declaration alleges that the whole of the paramount rent is charged upon the defendant’s lot and yet avers that part of it was collected yearly from the owners of the three small lots. This is a contradiction. Thé pleadings must be consistent. Stephen PI. *377.
    This court affirmed the judgment in the case of Lukens v. Eiss on the ground that the payment there was voluntary. If the rent had been paid under a distress, the defense would have been good.
    The covenant of indemnity is the covenant of the plaintiff, and he is bound to see that the paramount rent is paid. When the covenant is broken, the plaintiff is in default and cannot maintain an action for that default. The plaintiff must show an actual performance or tender, unless he avers what amounts to a waiver by the defendant. Magaw v. Lothrop, 4 W. & S. 316; Withers v. Atkinson, 1 Watts, 236; Scott v. Barrett, 3 Gr. 241.
    The covenant of indemnity is a benefit annexed to the small lots and a burden upon the defendant’s lot. It therefore runs with the title of the former but not with that of the latter. It is a mere personal covenant so far as the burden of it is concerned. Rawle on Covenants, 313-374; Masury v. Southworth, 9 Ohio, N. S. 340.
    The several conveyances mentioned in the declaration were nothing more than an effort to apportion the paramount rent. McQuigg v. Morton, 39 Pa. 31.
    ■ The doctrines of marshalling assets and of subrogation, upon which the plaintiff relies, have no application.
    : ■ Profert of the deeds ought to have been made. The deeds are averments of title, without which the plaintiff could not recover. ■1 Chitty PL, *365 ; Stephen PL, *66, *436.
    Jan. 7, 1889.
   Per Curiam,

This judgment is affirmed upon the .opinion, of the learned President of the court below.

Gordon, C. J., and Tbunkey, J., absent. H. J. L.  