
    Richmond.
    Mulliday v. Machir’s adm’r.
      
    
    (Absent Brooke, J.)
    1846. April Term.
    
    1. Trustees, by authority of an act of assembly, sell and convey land, reserving in the deed a ground rent, to be paid to the proprietor of the land, when he should be ascertained. Upon a bill filed by the proprietor against the purchaser to recover the ground • rents, Held : The statute of limitations is no bar to the recovery.
    2. It appearing from the answer of the defendant, that the ground rents have not been paid, Held : Lapse of time is no bar to the recovery.
    3. Tho proprietor having delayed for many years to prosecute her claim for ground rents, she will not be allowed interest thereon.
    4. The deeds executed by the trustees not having reserved any light of re-entry or distress, and containing no covenant by the purchaser to pay the ground rents, and the proprietor not being a party to the deeds, the party claiming under the proprietor is entitled, from the difficulty of proceeding at law, to come into equity for relief.
    
      5. This Court, upon affirming the decree of the Court below, which ¿oes not bear interest, will give damages, at the rate of six per cent, per annum, upon the amount of the decree, exclusive of costs, from the time the appeal took effect until paid.
    
    In 1762, Lord Fairfax, the proprietor of the Northern Neck of Virginia, laid off the town of Romney, in the county of Hampshire ; and in the same year an act was passed by the House of Burgesses of Virginia, establishing the town. The plan pursued by Lord Fairfax, in the sale of the lots, was to reserve an annual ground rent of five shillings sterling bn each. A few only of these lots had been sold when the commencement of the revolutionary war and the death of Lord Fairfax involved the title to those which were unsold in such difficulties as to prevent any farther sales, until the Legislature passed an act in 1794, authorizing the trustees of the town of Romney to sell and convey to the purchasers, reserving in the deeds they should execute, “ the same ground rents as stipulated in deeds thereto- • fore made for lots in said town, to the proprietor, his heirs and assigns, whenever it should be known to whom the property belonged.”
    In pursuance of the act of 1794, the trustees of the town of Romney proceeded to make sales of the vacant lots in the town, and to convey the same to the purchasers, reserving the ground rent of five shillings sterling on each lot, “ to be paid to the person or persons, his or their heirs or assigns, who may hereafter prove a legal title to the proprietorship of said town.” But the deeds reserved no right of distress for the rent; and contained ' no covenant on the part of the purchasers to pay the same ; nor were they executed by them. Of these lots, Thomas Mulliday became the purchaser of ten, and received conveyances therefor from the trustees of the town) and he purchased from another person one more ; so that at one time, he owned eleven lots in the town of Romney; and at the time of the filing of the bill in this case, he was still the owner of nine.
    Sometime between the years 1794 and 1796, a contract was made between Denny Martin Fairfax, the devisee under Lord Fairfax’s will, of all the interest of Lord Fairfax in the Northern Neck of Virginia, and the late Judge Marshall, James M. Marshall and Raleigh Colston, by which the former sold to the latter that interest, with some special reservations. And in 1796 these purchasers made a compromise with the State of Virginia, by which their title to the property in the town of Romney was recognized and established.
    In the division of the property among the purchasers from Denny Martin Fairfax, the unsold lots in the town of Romney, and the ground rents reserved upon those sold, were assigned to James M. Marshall, and were conveyed to him by Denny Martin Fairfax, in 1797. These rents afterwards passed by regular conveyances through several purchasers, to Elizabeth Machir. She resided in the State of Kentucky; and seems to have made no attempt to enforce the payment of the rents during her life; and as the holders of the lots refused to pay them, they remained in arrear.
    
      Elizabeth Machir died in the year 1830 or ’31; and in 1832 Edward C. M'Donald qualified as her administrator with the will annexed, in the County Court of 
      Hampshire; and thereupon filed his bill in the Superior Court for the said county, against Thomas Mulliday, to recover the rents in arrear in the lifetime of Elizabeth Machir, upon the lots in the town of Romney, which were then or had been owned by him.
    
      Mulliday demurred to the bill, on the ground that the Court had no jurisdiction to enforce the payment of the rents reserved on the lots; but the Court overruled the demurrer. He then filed his answer, in which he contested the right of the plaintiff to recover, on various grounds; and says he has always denied the equity and legality of these claims for rent. And he also relied on the statute of limitations.
    In the progress of the cause a commissioner was directed to ascertain and report the amount of the rent in arrear from the defendant, as well upon the lots which he had sold, as those he still held; counting upon the first up to the time he sold the same, which was in the lifetime of Elizabeth Machir, and upon those he still held to the time of her death. This report ascertained that there was due from the defendant of principal, the sum of 391 dollars 11 cents, and of interest thereon, calculated to the 16th of June 1837, 570 dollars 11 cents.
    The cause came on to be finally heard in April 1839, when the court made a decree in favour of the plaintiff for the sum of 391 dollars 11 cents, the principal of the rents due, but refused to give a decree for interest. Prom this decree the defendant Mulliday applied to this court for an appeal, which was allowed.
    
      G. N. Johnson, for the appellant,
    insisted 1st. That the court had no jurisdiction to enforce the payment of the rents. He contended that the plaintiff might have maintained an action of debt for these rents in his own name. And for this, he referred to 2 Tuck. Com. 17; 1 Saund. R. 241, C. in note; Allen v. Bryan, 11 Eng. C. L. R. 292; Robins v. Cox, 1 Levintz 22; Scott v. Lunt's adm’r, 7 Peters’ R. 596.
    
      2d. That the claim was barred by the statute of limitations. The only excuse for coming into equity was, that the deed contained no covenant binding the appellant to pay the rent. It was therefore a simple contract debt, and barred by the statute.
    
      Patton, for the appellee.
    I have not considered it important to enquire whether an assignee can maintain an action of debt for rent. But, certainly, the assignee can have no greater power to sue than the grantor. And in this case, the grantor could not sue, as the deed was not made by him, but by the trustees, who were the only persons who could sue upon it. Ross v. Milne & wife, 12 Leigh 204.
    2d. The trustees who executed the deed might maintain covenant upon it, though it was not executed by the grantee, because in a contract of lease reserving rent the grantee is a covenantor, though he did not sign the deed. 2 Bac. Abr. Covenant, letter B.; Rolle’s Abr. 519; Styles’ R. 387; Carth. R. 385; Lomax Dig. 250; Platt on Cov. p. 10 to 18. The statute is therefore no bar to the claim.
    But farther. This is a contract reserving a rent out of real estate; which from its nature creates a lien upon the subject conveyed, for the payment of the rent. And this is an answer to both the objections urged by the counsel for the appellant.
    3. Interest should have been allowed upon the rent in arrear. In such cases interest is not to be given or refused as a matter of course. The Courts have seemed to say, that where there was property on the demised premises, out of which the rent could have been made by distress, interest will not be allowed. But it will be allowed where this is not the case. Here it does not appear there was property on the premises; and if there was, the conveyance by the trustees simply reserved the rent of five shillings sterling to the proprietor when he should he ascertained, but reserved no right of distress to such party. It cannot be said that delay will deprive the appellee of interest. Whatever the delay, when a par(.y. comes t0 recover his debt, he is entitled to the in-Merest. Baker v. Morris, 10 Leigh 284.
    4. If this Court shall affirm the decree of the Court below, then we are entitled to damages. Under the act of 1819, 1 Rev. Code 208, and long previous to that act, damages at 10 per cent, per annum on principal, interest and costs, were assessed, upon the affirmance of a decree. Since the act of 1831, Sup. Rev. Code 149, this Court has simply affirmed the judgment or decree, without giving damages. An examination of the statute will shew, that the only effect of this act is to substitute six for ten per cent, damages.
    
      G. N. Johnson, in reply.
    The counsel on the other side does not deny that if there was a legal title the assignee might sue. But he says the proprietor had not the legal title, but it was in the trustees. Suppose this were so ; the trustees then could sue. No impediment in their way is suggested. But in fact, the legal title is not vested in the trustees. The act of 1794, 1 Stat. at large N. S. 317, points out the powers and duties of the trustees, and provides that the rents shall be reserved to the proprietor, whoever he might be. The deeds executed under the act are in conformity to it. The trustees were mere commissioners; and their duties were merely ministerial, to convey to the grantee the property of him to whom the rent was reserved. In Ross v. Milne & wife, no consideration had moved from the third party in whose favour a provision was introduced into the deed. In that case, too, the deed was executed by both the parties: and therefore it was that the action could not be 'maintained by a person not a party to the deed. But where a deed not executed by both parties, contains a provision in favour of a third person, such third person may sue upon it. Platt on Cov. 7. In the case at bar the deed of the trustees was not signed or intended to be signed by Mulliday. But by accepting the deed he impliedly assumed to pay the rent; and this was a parol undertaking of Mulliday to the proprietor whose property it was, and from whom therefore the consideration proceeded, upon which the proprietor may maintain an action. Chitty on Cont. 45, 48.
    But it is said the proprietor had a lien on the land to secure the rents; and properly came into equity to enforce it. This idea of a lien does not appear in the bill. That does not claim to subject the land; but asks for and obtains a personal decree against the appellant. The only way at common law, to charge the land with the rent was by reserving the right of re-entry or distress. But in equity there is no mode of charging the land, unless a mortgage or lien has been given to secure the rent. If there is a lien, then the last tenant would be liable for all the rents due from the preceding tenants : but this is against the settled doctrine on the subject. 2 Tuck. Com. 18, and the cases there cited.
    2. To obviate the bar of the statute we are told that the rent is not due by simple contract, but is secured by covenant. If this be so, then the only ground of jurisdiction stated in the bill is taken away. But is the rent secured by covenant? It is said that the grantee is liable to an action of covenant though he did not sign the deed. Bacon’s Abr. in the place referred to, obviously speaks of an action upon a deed poll by the grantee against the grantor. The authority cited is ltolle’s Abr. 519, where such was the action. This subject is fully treated of in Platt on Cov., Law Libr. 54, 194. where the doctrine is controverted.
    If thou the rent in this case is not secured by a covenant, it is barred by five years; but if it is thus secured, the recovery cannot go back farther than twenty years. Opinion of Stanard, J. in Baker v. Morris, 10 Leigh 284.
    
      3. The bill simply asks for the rent, and does not ask for interest. At most it is a matter of discretion to give interest; and as it is not pretended that there has been any obstacle to prevent the parties entitled from proceeding to recover them as they fell due; and as without reason they have delayed to assert their claim for some thirty or forty years, they are debarred by their own laches from all title to interest.
    4. As to damages upon the affirmance of a decree, the practice has been settled against the allowance of them since the act of 1831.
    
      
       This case was decided at the April term 1846, and the report of the case was then prepared, but it was mislaid, and has been lately recovered.
    
    
      
       1 Rev. Code, ch. 66, § 59, p. 208. “ The Court of Appeals, and the several District Courts of Chancery, in all cases where any decree rendered for any sum of money, or quantity of tobacco, shall, on appeal therefrom, be affirmed, shall award to the appellee damages, at the rate of ten per cent, per annum, on the whole amount (including costs,) for which such decree was rendered, from the time the appeal was obtained, until the affirmance in the appellate Court, in satisfaction of all damages or interest, and legal interest from that time until the same shall be paid.”
      Sup. Rev. Code, ch. 109, § 32, p. 149. “ Henceforth, upon the affirmance of any decree or judgment whatsoever, of any inferior Court by any appellate Court, no damages shall be awarded to the party prevailing, beyond legal interest on the debt or damages, or profits of property adjudged, and the costs.”
    
   Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion that the appellee, in right of his testatrix, Elizabeth Machir, has shewn good title to the ground rents which accrued before her death, and stated in the commissioner’s report made in this cause, as reserved by the deeds of conveyance from the trustees of the town of Romney in the proceedings mentioned, under which the appellant has acquired his title ;to the lots thereby conveyed : that the appellee’s claim to said ground rents has not been barred by lapse of time, inasmuch as the statute of limitations has no application thereto; the said rents having been reserved upon the estates granted by said deeds; and inasmuch as there is no room for the presumption of payment, arising out of lapse of time, it appearing from the appellant’s answer that in point of fact no part of said rents has ever been paid: and that the difficulties which would have attended the prosecution of remedies at law for the recovery of said rents, under the circumstances of the case, and especially the circumstance that the person or persons entitled as proprietor or proprietors at the times of the execution of said deeds, were not parties thereto, rendered it proper for a Court of Equity to take jurisdiction of the subject, for the purpose of compelling an account and discovery in regard to said rents, and the payment thereof to the person entitled thereto. The Court is therefore of opinion that there is np error in said decree to the prejudice of the appellant. And the Court is further of opinion that, under the circumstances of the case, the said Circuit Court properly refused to allow interest to the appellee upon said rents, and therefore that there is no error in said decree to the prejudice of the appellee. And the Court is further of opinion that under the true construction of the statutes giving damages upon the affirmance of decrees, 1 Rev. Code, p. 208, § 59, and Sup. Rev. Code, p. 149, § 32, damages at the rate of six per centum per annum ought to be allowed to the appellee upon the sum of money, exclusive of costs, recovered by said decree of said Circuit Court, from the time the allowance of the appeal took effect until paid.

Decree of the Court below affirmed, with damages as aforesaid.  