
    Ely against Beaumont.
    Tuesday, April 6.
    A lease made to one, and his heirs, for 49 years, reserving to the lessee a privilege of building, with a covenant by the lessor to purchase the improvements at the end of 49 years, or convey to the lessee, his heirs and assigns, the land at a valuation; the lessee afterwards erects valuable buildings, held, to be such an interest as is bound by a judgment against the lessee.
    In Error.
    ERROR to the Common Pleas of Bucks county.
    An amicable action of scire facias was entered in the Court below, by John Beaumont against Cornelius Ely, alienee of John Ely, to revive a judgment entered on the 2d J ^7 jo December, 1815, in favour of Beaumont against John Elyy and the following case was stated for the opinion of the Court, to be considered in the nature of a special verdict. 7 1
    
    On the 7th November, 1809, Robert T. Neely, granted and to John Ely and Cornelius Ely, a lot of ground in J J J New 'Hope in Bucks county, at the annual rent pf six dollars, t0 be held by the-said John and Cornelius Ely, their heirs an¿ assigns, as tenants in common, for and during the term „ ° ’ . , - ,, . , ,. ° , . of 49 years, with lull privilege to erect buildings, and ímprovernents thereon. -And at the expiration of the term of 1 4,9 years, the parties to choose seven men, who were-to value the lot' as though no buildings were erected, or improve'ments made thereon; and also to value the buildings and improvements separately from the land. And if the said ■Robert T: Neely, his heirs or assigns, would take the buildings and improvements at the valuation, so as aforesaid obtained, it should be the duty of the said John and Cornelius Ely, their heirs and assigns, upon receiving the said valuation, to convey and confirm the said buildings and improvements to the said Robert T. Neely, his heirs or assigns, for ever. But if the said Robert T. Neely, his heirs or assigns, should neglect or refuse to take the said buildings and improvements at the valuation, then it should be the duty of the said Robert T. Neely, his heirs or assigns, upon receiving the valuation of the said lot, to convey and confirm the said lot of land to the said John and Cornelius Ely, their heirs and assigns for ever. And in case Robert T. Neely, or his heirs, should wish to sell the Tot, or the said John and Cornelius Ely, or their heirs, their buildings and improvements before the expiration of the 49 years, the- person wishing to sell shall -give the other the first offer, and on his refusal to purchase may sell to any other person. To the performance of all which the-parties bound'themselves to each other in the penalty of $84,000.
    - Upon the execution of the writing aforesaid the said John and Cornelius Ely, • took possession of the said lot of land, and erected a house with other buildings and improvements thereon of the value of $8 2,000.
    . Upon the 18th August, 1814; Robert T. Neely released and conveyed all his right in the lot of land to Cornelius Ely in fee, reciting in the deed, that John' Ely had before that time assigned all his right in the premises to said Cornelius Ely, which recital was not. correct, no such conveyance having been made.
    On the 12th day of ¡November, 1816, John Ely released and conveyed to Cornelius Ely all his-right in the premises, buildings, and improvements.
    ' Upon the foregoing case, the question for the opinion of the Court was, whether the said judgment was; a lien upon the right and estate of John Ely.in the premises, buildings,-and improvements aforesaid, at the time of the entering thereof or after. And whether, the said Cornelius took the interest of the said John, in the said lot and improvements, subject to the payment of the said judgment. .
    If the Court shall be of opinion with the plaintiff, then judgment shall be entered generally. • But if the Court shall be of opinion with the' defendant, then judgment shall be entered, that John Ely had nothing in the premises, buildings, and improvements aforesaid, that was bound or affected by the judgment at the time of the entering thereof, or ever after. And that the judgment ought not to be levied upon the said premises, buildings, and improvements.
    The Court below gave judgment for the plaintiff, Beaumont, and the following opinion was delivered by President .-Wilson. -
    - The decision of the question submitted to us by this case, depends principally on the construction and effect of the deed of 7th November, 1809, from Robert T. Neely to Cornelius and John Ely, and the interest the latter took thereby in the.
    
      premises conveyed. The lien of judgments in Pennsylvania is not confined as it is in England, to legal estates. It extends, (agreeahly to the opinion given by the Supreme Court in Carkhujf v. Anderson, 3 Binn, 4,) to every kind of equitable interest in land, and attaches upon every kind of right therein, vested in the debtor at the time of the judgment. What interest then did Cornelius and John Ely take under the deed of 1809 ? The defendant’s counsel considers that interest to have been simply a lease for 49 years, as expressly granted by the deed ; and as being therefore a mere chattel interest, on which a judgment is not a lien. He contends, that the subsequent covenants in the deed, and the penalty by which the performance of them is secured, though they are binding on the parties, yet give no interest in the land, but only a right of action for damages if they are not performed, and that the estate might or might not be conveyed according to the covenant, at the option of the parties, they subjecting themselves only to the penalty. But this is not a correct view of the operation of that deed. Though the only estate expressly granted is for 49 years, yet other interests are acquired by Cornelius and John Ely by the subsequent clauses of the deed. They had the privilege to erect buildings and improvements upon the land, the right to which they and their representatives would retain, unless Robert T. Neely paid for them according to a valuation to be made in the manner stipulated. This privilege they have exercised, by erecting buildings to the value of g 2,000; and thereby they acquired an interest in the premises, more permanent than a chattel interest, and which would descend to their heirs, and not to their executors. The subsequent covenants also gave them an equitable title to the premises, on performing the terms stipulated on their part. These covenants do not merely give them a right of action for damages, but are such as a court of equity would enforce specifically. If, when the valuation of the improvements and of the land was separately made agreeably to the deed, Robert T. Neely should neglect or refuse to take the improvements at the valuation, Cornelius and John Ely might, by bill in chancery, compel him to convey them the land upon their paying the amount of the valuation of it. And upon such a title they might, in Pennsylvania, support an action of ejectment. All his right in the premises has been conveyed by John Ely to 
      Cornelius Ely, who has obtained an absolute title to the whole premises from Robert T. Neely.
    
    The case of Carkhuff v. Anderson, before referred to, is not stronger than the present case; and the principles on which it was decided are equally applicablé here. In that case Craig, at the time the judgment of Hollenbach was recovered against him, had no title to the land which was recognised by our laws, his title being derived from the state of Connecticut. .He had only an option given by the act of assembly of 4th April, 1799, to receive a patent for the land on paying the price of it, provided the Pennsylvania, claimant of the same land should release it to the Commonwealth. Yet the Supreme Court held, that though Craig was at liberty to pursue the right or not, yet this was such an interest in the land as was bound by the judgment against him ; and that the land was consequently bound by the judgment in the hands of Anderson, to whom he had conveyed all his right after the judgment was entered-, and who had obtained a patent agreeably to the act of assembly.
    I am of opinion, that John Ely had, at the time when John Beaumont recovered his judgment, an interest in the premises which was bound by that judgment. Judgment is therefore given for the plaintiff generally, according to the agreement in the case.
    This case was argued by
    
      Purdon, for the plaintiff in error, and
    
      J. S. Smith, for the defendant in error.
   Per Curiam.

We have no douht in this case. It falls within the principle of Carkhuff v. Anderson. John Ely had an interest greater than leasehold; eventually it might be fee simple. We are of opinion, that the judgment should be affirmed.

Judgment affirmed.  