
    Van Rensselaer v. Slingerland.
    The statute abohshing distress for rent (ch. 274 of 1846, §3,) recognizes the assignable quaEty of a condition of re-entry for non-payment of rent reserved in a grant in fee, and gives to an assignee of the rent the same right to maintain ejectment as was conferred, by chapter 98 of 1805, repealed in 1860 (ch. 396), as to grants made prior to its passage.
    This was an action of ejectment, or in the nature of ejectment, commenced in 1856, and tried in September, 1860, at the Albany Circuit, before Mr. Justice Could, without a jury.
    The complaint stated that on the 9th of July, 1790, Stephen Van Rensselaer, now deceased, as party of the first part, and Cerrit Seager, Jun., as party of the second part, executed,. sealed and delivered an indenture, by which Van Bensselaer conveyed, in fee simple, to Seager the lands sought to be recovered, describing them, being 123 3-4 acres, situated in Hew Scotland, Albany county, and within and parcel of the manor of Bensselaerwick, on the west side of the Hudson river, the said Seager, his heirs and assigns, yielding and paying therefor, yearly, during the continuance of the grant, unto the said Van Bensselaer, his heirs and assigns, the yearly rent of 15 bushels of wheat, 4 fat hens, and performing one day’s service with carriage and horses, the payments to be made on the second day of January in each year, with a covenant for the payment of the rent, and authority to Van Bensselaer, his heirs and assigns, to distrain, in case the rent should be in arrear 28 days; and the indenture then contained, as stated in the complaint, the following condition: “ And it was provided further, and the said indenture and everything therein contained was upon the express condition that if it should at any time happen that no sufficient distress could be found upon the premises to satisfy such rent due and in arrear as aforesaid, or if either of the covenants and conditions thereinbefore contained, on the part of the said party of the second part, his heirs and assigns, to be performed, fulfilled and kept, should not be performed, fulfilled and kept, then, and in each and every such case, and from thenceforth, and at all times thereafter, it should be lawful to and for the said Stephen Van Bensselaer, his heirs and assigns, or any of them, into the whole of the hereby granted premises, or into any part thereof, in the name of the whole, to re-enter, and the same, as in his and their former estate, to have again, repossess and enjoy; and the said party of the second part, his heirs and assigns, and all others, thereout, and from thence utterly to expel, put out and remove, the said indenture, or anything therein contained to the contrary hereof, in any wise notwithstanding.” And it w.as alleged that by virtue of that indenture the party of the second part thereto took possession of the lands therein described, and that the same have ever since been held by virtue of and under said indenture, by said party of the second part, his heirs and assigns. That after the making of said indenture, and before the first day of January, 1840, all the interest of the party of the second part to said indenture, in the demised -premises, came by assignment legally made to and vested in the defendant, and remained in him at the time of the notice thereinafter mentioned. That on the 18th of April, 1837, the said Stephen Van Rensselaer, the said grantor, duly made and executed his last will and testament, by which he devised to the plaintiff, his heirs and assigns, the said rent and all the remaining interest and estate of the said Stephen Yan Rensselaer in the said demised premises. That Stephen Yan Rensselaer died on the 26th of Jam!ary, 1839, seised' of the rent, and of, his remaining interest and estate in said demised premises, without having altered said will, whereupon the plaintiff became seised of said rent, interest and estate in fee ; that seventeen years’ rent, from 1840 to 1856, both inclusive, became due after the death of Stephen Yan Rensselaer, and still remains due tad unpaid, which the defendant neglects and refuses to pay; that since the second day of February, 1856, and during the default in payment of said rent, the plaintiff gave notice in writing, signed by him, directed to said lessee or grantee, party of the second part to said indenture, his heirs, executors, administrators and assigns, stating that the plaintiff intended to re-enter upon said demised' premises, in pursuance of the covenants, provisions, reservations and conditions of said indenture, and the act passed May 13, 1846, entitled “ An act to abolish distress for rent and for other purposes,” and served such notice by delivering the same to.the defendant personally; that the defendant then was and still is in possession of the said demised premises, having entered thereon under and by virtue of said indenture, under the party of the second part thereto, his heirs and assigns,' and continuing so in possession, unlawfully withholds from the plaintiff the possession of said land, which the plaintiff clailns in fee, and demands judgment for the recovery thereof.
    The defendant, in his answer, denied the allegations of the complaint.
    
      On the trial a motion was made to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which was denied, and the defendant’s counsel excepted.
    The plaintiff then gave in evidence the indenture described in the complaint, and the will of Stephen Yan Eensselaer, containing the devise therein set forth, and it was admitted that the devisor died" January 26, 1839.
    The plaintiff then gave in evidence a deed from Staats Seager and wife to the defendant, dated in January, 1847, conveying the farm therein designated as the farm described in the lease thereof from Stephen Yan Eensselaer to Garret Seager, dated July 9, 1790, and described by metes and bounds, as contained in said indenture, with covenants of warranty, except as against the reservations, conditions, &c., in the original lease of said premises from .Stephen Yan Eensselaer, deceased. It was admitted that a notice of intent to re-enter had been served as alleged in the complaint, that the so-called rent had not been paid when the notice was served, as also alleged in the complaint, and that the defendant was in possession of said premises at the time of the service of the notice and at the time of the commencement of this action.
    The defendant moved for a nonsuit upon the grounds:
    1. That the deed to Garret Seager, .Jr., was a deed of assign*ment and not of lease, leaving no reversion in the grantor, and did not create the relation of landlord and tenant.
    2. That the plaintiff had failed to show any estate, title or interest in the premises sought to be recovered.
    3. That he had failed to prove any assignment or transfer of even the rents to himself; that they did not pass by the devise, which merely passed real estate, having a descriptive location, and not choses in action..
    4. That the demands, for non-payment of which this action was brought, were purchase money payments on the vendition of the land, and not rent payments, and do not run with the land; and the defendant being the vendee of the land and not a lessee or assignee ‘of a lessee, is not liable, in this action.
    
      5. That the right of entry for condition broken is a litigious right and not assignable.
    6. That chapter 98 of the Laws of 1805, enabling grantees of reversions to take advantage of the conditions to be performed by lessees, and the subsequent re-enactments thereof, having no application to the deed in fee from "Stephen Van Rensselaer to Garret Seager, Jun., dated 9th July, 1790, this action is not maintainable.
    The judge denied the motion, and the defendant’s counsel excepted.
    The judge then found the facts as follows:
    That Stephen Yan Rensselaer and Garret Seager, Jun., on the 9th of July, 1790, executed the indenture set torth in the complaint. That the grantor died on the 26th of January, 1839, still owning the said rent and condition of re-entry, •having devised the rent, condition of re-entry, and all his interest in said premises remaining in him after said grant, to the plaintiff, who continued to own the same at the commencement of this action.
    That before January, 1848, all the estate and interest of the grantee, Garret Seager, Jun., in the said granted premises, by assignment, came to and vested in the defendant and continued in him at the time of the service of the notice hereafter mentioned.
    That the rent reserved by said indenture, and which fell due on the 2d of January, 1856, all remained unpaid, and also a large amount of the rent previously accrued on said indenture.
    That on the 24th of June, 1856, notice of an intention to • re-enter was given, as stated in the complaint. That the defendant at the commencement of this action (which was commenced more than fifteen days after service of such notice), • was in possession of said premises.
    On these facts the judge found as a conclusion of law, that the plaintiff was entitled to recover from the defendant the possession of the premises mentioned in the complaint, and judgment was entered accordingly. That judgment was affirmed at the general term, and from such affirmance the defendant took the present appeal.
    
      Anson Bingham, for the appellant.
    
      Charles M. Jenkins and John K. Porter, for the respondent.
   Selden, J.

In the two cases of Van Rensselaer v. Snyder (13 N. Y., 299), and Van Rensselaer v. Ball (19 id., 100), all the objections which are urged against the recovery in this case, on facts in all material respects the same as those which are here presented, were considered and held insufficient to prevent a recovery. But in the case of Van Rensselaer v. Ball, the objections that the right of re-entry for condition broken was not assignable, and that no reversion remained in the plaintiff’s devisor after his conveyance, and consequently the plaintiff had no estate in the premises claimed, were answered by refer-' ence to the statute, ch. 68 of the Laws of 1805, by which all the provisions of the act of 1788, entitled “ an act to enable grantees of reversions to take advantage of the conditions to be performed by lessees,” and the remedies thereby given, were extended as well to grants or leases in fee, reserving rents, as to leases for life and years. Without the aid of that act it was assumed that the action could not be maintained, for the reason that the provisions of the act of 1788 only extended to persons entitled to reversions, and that at common law a right of entry for condition broken was not-assignable. Since that decision was pronounced, the act of 1805 has been repealed by the legislature so far 'as it applied to deeds of conveyance in fee made before the 9th day of April, 1805. (Laws of 1860, ch. 396.)

■ The objection to the constitutionality of this act as applied to cases like the present, has already been overruled by this court and as that act became a law prior to the time of the trial of the present action, the rulings of the judge can gain no support from the act of 1805. The absence of the provisions of that act, however, is fully supplied, so far as those provisions related to the questions under consideration in this case, by the third section of ch. 274 of the Laws of 1846. The first section of that act abolishes distress for rent. The second section repeals several sections of the Revised Statutes giving, landlords, to a certain extent, priority of claim for the payment of rent, over the lien of executions levied upon goods of tenants on demised premises. The third section is as follows:

“ § 3. Whenever the right of re-entry is reserved and given to a grantor or lessor, in any grant or lease, in default of a sufficiency of goods and chattels whereon to distrain for the satisfaction of any rent due, such re-entry may be made at any time after default in the payment of such rent, provided fifteen days’ previous notice of such intention to re-enter, in writing, be given by such grantor or lessor, or his heirs or. assigns, to the grantee or lessee, his heirs, executors, administrators or assigns, notwithstanding there may be a sufficiency of goods" and chattels on the lands granted or demised for the satisfaction thereof. The said notice may be served personally on such grantee or lessee, or by leaving it at his dwelling house on the premises.” (3 R. S., 5th ed., 830, § 10.)

This statute, in the cases to which it applies (and it is directly applicable to this case), accomplishes two objects. 1. It substitutes the notice of 15 days in the place of evidence that there was no sufficient distress on the demised or granted premises to pay the rent, and makes such notice equivalent, in giving a right of entry, to such evidence. (Van Rensselaer v. Snyder, supra.) 2. It recognizes the assignable quality of the condition of re-entry, and secures to the assignee the same rights in that respect which were possessed by the assignor to whom the right was originally reserved. The question, therefore; is the same as it would be if the original grantor of the premises, to whom the rent was reserved, were himself plaintiff in this action. If he were the plaintiff, and depended upon the act of 1846 alone, although he would be excused (having given the 15 days’ notice) from showing the want of a sufficient distress upon the premises, he would still be required to show a demand of the rent with all the technical precision which was required by the common law to effect a forfeiture of the tenant’s estate. But the Revised Statutes have relieved the landlord from the necessity of making such demand where a half year’s rent or more is in arrear, making the service of a declaration in ejectment to stand instead of such demand (2 R. S., p. 505, § 1; vol. 3, 5th ed., p. 829, § 30); and this provision has been held applicable as well to grants in fee reserving rent as to leases for life or years. (Van Rensselaer v. Snyder, supra.)

The plaintiff in this case proved all the facts which are required to be proved under these two statutes, to justify a recovery, if ejectment, or an action in the nature of ejectment, is a proper remedy to gain possession of lands, without previous entry, on breach of condition for re-entry un default in pay. ment of rent. No entry is necessary to maintain the action in any case where the immediate right of possession exists in the plaintiff. (2 R. S., p. 303, § 3; p. 306, § 7; p. 505, § 30; 4 Seld., 118.) The statute introduced no new rule on this subject (Roscoe on Real Actions, 497; 3 Co. Litt., Thomas’ ed., 15 note I). The cases of Van Rensselaer v. Snyder and Van Rensselaer v. Ball are in effect decisive of the present action. The only distinction between them arises from the partial repeal of the act of 1805 since those actions were tried, the place of which, so far as relates to the questions arising here, is perfectly supplied by the act of 1846, which still remains in force. The objections that the plaintiff has no reversion, and that a condition of re-entry can only operate by putting an end to an estate, and cannot give an estate to a stranger to the title, would have been no answer to the action even at common law. It was decided by the unanimous opinion of the judges of the King’s Bench, in the case of Jemmot v. Cooly, which was three times argued, that the grantee of a rent charge in fee, without interest in the land beyond that given to him by such - grant, could maintain ejectment after default in payment of the rent. In the opinion, Kelynge, Twysden and Wyndham, Js., are reported to have said that “ the power of entry is an inheritance and descends to the heir.” (1 Lev., 170.) The case is also reported in T. Ray., 135, 158; 1 Saund., 112; 1 Sid., 223, 262, 344. In that case, the grantee of the rent charge had entered and made a lease to the plaintiff in the ejectment, but, as has been shown above, entry was not necessary. The right of entry must exist before a lawful entry can be made, and that right is all which is required to maintain the action. The only statutory aid which the plaintiff in the present case required was, that his rights as assignee of the right of entry should be recognized (2 Seld., 506, 507), which was done by the act of 1816. The judgment should be affirmed.

Weight and Rosekeans, Js., took no part in the decision; all the other judges, concurring,

Judgment affirmed.  