
    Wartenby v. Moran.
    [Friday, November 4th, 1803.]
    Rent — Re-entry for Nonpayment. — If a grant be made, reserving a yearly rent, with a condition that the grantor may re-enter if the rent be not paid, after demand made upon the premises, if no property is found on the land, whereof distress can be made; the grantor, upon demand made, and failure to pay, no property to distrain being found on the land, may re-enter, and grant over to another.
    In ejectment by Tibbs on the demise of Blair Moran and Richard Wells against Wartenby for a lot of land, the jury found a special verdict, which states: That Charles Prather and wife, by deed of bargain and sale, conveyed to Edward and Blair Moran in fee simple; which deed, dated the 11th December, 1790, they find in hsec verba, and it contains a clause that the grantee should pay a yearly rent; with a clause of re-entry for non-payment of the rent, after demand made upon the premises, if no effects to distrain could be found. That the grantees entered, and were seised until Oct. 15, 1792; when Edward died, leaving the plaintiff Moran, his heir at law; and Blair continued in possession of the premises, until the 16th of the month ; when no rent having ever been paid, and no effects to distrain found upon the premises, Prather entered thereon, and demanded the rent, and for failure in the payment thereof, and for want of goods whereof distress could' be made, he made an actual entry on the premises, and continued possessed until the 1st of June, 1795; when he conveyed to Robins, who entered, and was possessed, until July 6, 1795, when he conveyed to Wartenby, the defendant; who entered and was possessed until the lease, entry and ouster, in the declaration mentioned. That upon the 11th of December, 1796, the plaintiff Moran conveyed, in fee, to the plaintiff Richard Wells. That Prather obtained a patent for 451 acres, (of which the lot in the declaration mentioned is part;) and on the 10th of March, 1798, the said Richard Wells entered on the premises, and made a lease for ten years to Tibbs, who entered on the 11th of that month, *and was possessed until the 18th, when he was ejected by the defendant. The Dis•trict Court gave judgment for the plaintiffs; and, thereupon, the defendant appealed to this Court.
    Wickham, for the appellant.
    Prather’s title is not found; but, it is stated in the verdict, that he obtained a patent from the Commonwealth. The suit is brought by two persons claiming different rights; which cannot be supported. The entry of Prather for non-payment, renders all title under Moran void. The distinction, in the English books, is grounded on the non-payment of the rent absolutely; but here he may enter, first, to distrain; secondly, to hold, if he cannot find property to distrain : and, as it is found that there is no property to distrain, the title under Moran is necessarily void. Although it be generally true, that where both parties claim under the same person, neither shall attempt to impeach his title; yet, that cannot be insisted on now, as the point is not left open, after the verdict. Wells never was in possession, and Moran was disseised: of course, it is not like the case of Duval v. Bibb, ante, 362, where there was a constructive possession. The verdict does not find the lease, entry, and ouster as to both, but as to Wells only.
    Warden, contra.
    Wells is entirely out of the question, and his claim does not affect the case. Moran is the person, who claims title in the land; and the jury have found that the deed of bargain and sale was in fee; of course, the condition in the deed avails nothing, as the jury have taken the law of the case upon themselves. The estate was turned into a tenancy in common, and descended according to the act of Assembly. The entry is not found to have been for the purpose of making distress: for, it is only that he entered to demand the rent; and it was all done uno flatu. No previous notice was given; and, therefore, the grantee *had no right to enter for the breach, at that time. Both parties claim from Prather, and, consequently, neither ought to be allowed to impeach his title. The result is, that judgment ought to be entered in favor of Moran.-
    Wickham, in reply.
    Moran was out of possession ; and, therefore, the deed from him to Wells is void. The declaration is upon two different titles, which cannot be maintained. The finding of the jury is confined to Wells, and does not extend to Moran; for, the verdict is taken upon the second count, which relates only to Well’s lease. The finding that Moran took a fee, makes no difference; for still, the whole deed is found, and the Court are to decide upon the deed itself. But, the finding is true; for, Prather did convey a fee; but it was a fee upon condition, only. There was no occasion for any previous notice of the entry for distress. It is never done, and there is nothing in the law which makes it necessary. The objection, that both claim from’ Prather, ought to have been insisted on before the jury; and is unimportant now.
    Warden. The entry was for the purpose of re-possessing himself of the estate; and, therefore, notice was necessary.
    
      
       Ground Rents. — The principal case is cited in Willis v. Com., 97 Va. 609, 34 S. E. Rep. 460, to the point that, ground rents, though not common in Virginia, are yet recognized as valid.
    
   RLEMING, Judge.

There is certainly nothing in the argument of the appellee’s counsel, that the jury have found that the conveyance, from Prather to Moran, was without any condition ; because the deed is found in hasc verba, and contains the condition.

The question then is, whether the re-entry was lawful? The verdict expressly finds, that no rent had ever been paid; that Prather made a demand; and that, there being no property on the land whereof distress could be made, he entered for the non-payment; which brings it exactly-within the *terms of the condition; and, therefore, the grantor had clearly a right to re-enter.

There is no ground for the objection, that notice ought to have been given that a reentry would be made; because, the law requires no such notice to be given ; for, upon the demand of the rent, and no property found to distrain, the right of re-entry attached. 6 Bac. Abr. 29, [Gwil. ed.;] 2 Roll. Abr. 427 ; 7 Co. 29; Ifitt. I 233.

As both parties claim under the same title, unless the plaintiff shews a better right, there is no ground to impeach the possession of the defendant.

And, upon the whole, I am of opinion that Prather had a right to re-enter and possess himself of his former estate, and that his deed to Robins was valid: of course, Wartenby, who claims under him, and is now in possession, has the better title; and, therefore, the judgment of the District Court ought to be reversed.

CARRINGTON, Judge.

The verdict finds that the rent was not paid; that it was demanded, and that there was no goods upon the premises, whereof distress could be made: Of course, by the express terms of the condition, the bargainor had a right to re-enter. There is nothing in the objection that no title in Prather is found; for, as both parties claim under him, the one in possession ought not to be disturbed, unless the other can shew a better right. I am, therefore, of opinion, that the judgment of the District Court ought to be reversed.

LYONS, Judge.

The demand of the rent, with the non-payment, and want of property on the premises, whereof distress could be made, are expressly found by the jury: Of course, the right of entry accrued by the express terms of the deed; and, therefore, the judgment of the District Court ought to be reversed.'  