most cases, an action of debt lies for the recovery of rent.1 These are independent *of the common-law right of the person [*13] seised of a rent, to enforce the same against the land by a writ of assize 2 or by ejectment, which may be brought by the assignee of a fee-farm rent reserved, if with it is reserved a right of distress or reëntry for non-payment of the same. Nor would the abolishing of the right to distrain, affect the right of the holder of the rent to avail himself of any other remedy he may have under the contract by which it was created. A substantial remedy still exists for the recovery of rent, the same that exists under the laws for the recovery of every other debt, the obligation of the contract is unimpaired. As a general proposition, whoever is entitled to a sum of money charged upon land, without any existing covenant between the tenant and himself, may have assumpsit to recover the same.5

15. An assignee of land charged with a rent, is liable to the grantee of the rent by reason only of holding the land, and ceases, therefore, to be liable for any rent accruing after he shall have parted with the estate. In one case the court say: "Debt lies by a lessor against the assignee only upon privity of estate, and when this fails by the assignment over, the action is at an end."6 It was held by the Supreme Court of the United States, that the assignee of a feefarm rent, might maintain covenant for its recovery in his own name, by virtue of the statute 32 Hen. VIII. ch. 34, by which the common law was altered so that the grantee of the reversion of a leasehold estate might sue for the accruing rent in his own name. They also held, that the action would lie against the personal representatives of the lessee, from whom the rent was reserved.7 But this law as to the right of an assignee of a covenant to sue for a breach of it in his own name in any case, unless some estate, to which the covenant is *attached, passes with the assignment of the [*14]

1 Duppa v. Mayo, 1 Saund. 281; 3 Cruise, Dig. 288.

2 Stearns, Real Act. 188; Lit. § 233;

Steph. N. P. 1223.

Marshall v. Conrad, 5 Call, 364, 405. 4 Guild v. Rogers, 8 Barb. 502, 504.

5 Swasey v. Little, 7 Pick. 296.

• Pitcher v. Tovey, 4 Mod. 71, 76, s. c. 12 Mod. 23.

7 Scott v. Lunt, 7 Pet. 596, 602; Van Rensselaer v. Hays, 19 N. Y. 68, 80, 98; 2 Sugd. Vend. 6th Am. from 10th Eng. ed. 482. But quære, if the statute 32 Hen. VIII. ch. 34, applies to covenants where there is no reversion.

covenant, is controverted by Mr. Hare, in his note to Spencer's case, and is at variance with a case in New York, where it was held, that the statute 32 Hen. VIII. ch. 34, did not apply to cases of a fee-farm rent.1

A distinction has been sometimes supposed to exist between a rent reserved and one granted, so far that, in the latter case the grantee of the land out of which it was granted should not be charged with the covenant to pay the rent, and the language of Lord Holt, as given by Lord Raymond in his report of Brewster v. Kitchin,2 has been relied on as sustaining this distinction. But Denio, J., in

Van Rensselaer v. Hays, above cited,3 insists that the language of Lord Holt has been misapprehended, and quotes, with approbation, the language of Sir Edward Sugden: "Covenants ought to be held to run in both directions, with the rent or interest carved out of or charged upon it (the land) in the hands of the assignee, so as to enable him to sue upon them, and with the land itself in the hands of the assignee, so as to render him liable to be sued upon them." 4 The court add: "There seems to be no distinction favorable to the defendant, between a perpetual rent charge granted by the owner of the estate, and a like rent reserved by a conveyance in fee by indenture, where the grantee covenants for himself and his assigns to pay it."

16. It has also been attempted to maintain the doctrine, that although the burden of a covenant to pay rent may not be imposed upon land in favor of a stranger, so as to run with it, and bind an assignee of the land, a stranger may covenant with the land[*15] owner in such a manner as to attach the benefit of *the cov

1 1 Smith, Lead. Cas. 5th Am. ed. 152, 153; Van Rensselaer v. Platner, 2 Johns. Cas. 24. This case is commented on in Van Rensselaer v. Hays, 19 N. Y. 80, where the judge was inclined to hold, if it had not been for the cases cited, that covenants would run with rents into the hands of the assignees of such rents, relying upon 2 Sugd. Vend. 6th Am. from 10th Eng. ed. 482. See Van Rensselaer v. Smith, 27 Barb. 104, 143, 146; ante, Vol. I. p. *327. See McQuesney v. Hiester, 33 Penn. St. 435; Van Rensselaer v. Bonesteel, 24 Barb. 265. The above cited statute is not in force in Ohio, but an assignee may sue in his own name. Masury v. Southworth, 9 Ohio St. 346.

2 Brewster v. Kitchin, 1 Ld. Raym. 317, 322.

8 Van Rensselaer v. Hays, 19 N. Y. 68, 90, 91.

2 Sugd. Vend. 492. See also, upon the same subject, Lit. § 217, 218; Morse v. Aldrich, 19 Pick. 449; Plymouth v. Carver, 16 id. 183; Taylor v. Owen, 2 Blackf.

enant to the land and have it run with it in favor of whoever may become the owner thereof. It is not pretended that this can be done except where the covenant is to do some act for the benefit of the estate, upon the land itself. The doctrine above stated is advocated by the Editor of the American Edition of Smith's Leading Cases,1 is favored by the English Commissioners upon Real Property,2 and is assumed to be law in the cases cited below. To sustain it, reference is also made to Pakenham's case, commonly known as the Prior and Convent case, and to Coke's opinion.

But it is believed that the point has never been determined in this way, by a full court, though assumed by individual judges, and that, respectable as these opinions in its favor may be, the doctrine contended for, is opposed to well-settled principles as well as the highest authority. With a very few exceptions, the uniform current of authorities from the time of Webb v. Russell, to the present day, requires a privity of estate to give one man a right to sue another upon a covenant where there is no privity of contract between them. And, consequently, that where one who makes a covenant with another in respect to land, neither parts with nor receives any title or interest in the land, at the same time with and as a part of making the covenant, it is, at best, a mere personal one, which neither binds his assignee, nor enures to the benefit of the assignee of the covenantee, so as to enable the latter to maintain an action in his own name for a breach thereof.

It is not easy to define, in a few words, what is meant in all cases, by the expression "privity of estate." But it is apprehended that in the matter of a covenant running with land, the language

of Wilde, J., in Hurd v. Curtis, furnishes a sufficient *clue. [*16] There, the respective parties, owning independent estates,

entered into certain covenants with each other as to the kinds of wheels they should respectively use in their respective mills. The

* Per Jewett, J., Allen v. Culver, 3 Denio, 284, 301; Dickinson v. Hoomes, 8 Gratt. 353, 403, by Moncure, J.

* Year B. 42 Edw. III. 3 pt. 14, which is fully stated in 2 Sugd. Vend. 6th Am. from 10th Eng. ed. 473. See also, Keppell v. Bailey, 2 Mylne & K. 517, 539.

6 Co. Litt. 384 b. See also, Rawle, Cov. 335.

6 Webb v. Russell, 3 T. R. 393.

grantee of one of these estates was sued by the covenantee, who had retained his estate, for breaking the covenant as to the use of wheels in the granted estate. "We are of opinion that this action cannot be maintained, as there was no privity of estate between the covenanting parties. Their estates were several, and there was no grant of any interest in the real estate of either party to which the covenant could be annexed." 1

It is conceived, in accordance with this idea, that such covenants and such only, run with land as 'concern the land itself, in whosesoever hands it may be, and become united with, and form a part of, the consideration for which the land, or some interest in it, parted with, between the covenantor and covenantee. If one sell land to another, and give him therewith a covenant for title, he pays just so much more for the land as the covenant enhances the price. And the same would be true with a purchaser from him who, relying upon the covenant, pays him a price enhanced accordingly. And if the title fails, such second purchaser ought to be the one to receive from the covenantor the money originally paid for his agreement to make it good. So if one sell land and reserve a rent in fee, his vendee pays just as much less for it than he would for a free title, as the principal would amount to, whose interest was equal to this rent, and he to whom he sells, pays a price accordingly. In either case, the covenant becomes, in effect, a part of the estate itself; and whoever takes the estate, in one case, should have the benefit, and in the other, should bear the burden. And this, it is believed, covers the decided cases, and applies as well to covenants of title between grantor and grantee, as to covenants between lessor and lessee. But if one simply covenant with a stranger to build a house, or repair a mill-dam, it is not easy to see how it can be other than a personal covenant, or how it can make any difference in its character in that respect, whether the act is to be done upon the covenantee's [*17] land or that of a stranger. The subject is fully discussed treatise on Vendors, and the

by Sir Edward Sugden in his reader is also referred to the following cases as sustaining the doctrine above stated. It seems that the same effect would be pro

1 Hurd v. Curtis, 19 Pick. 459, 464; Van Rensselaer v. Bonesteel, 24 Barb. 365.

2 2 Sugd. Vend. 6th Am. from 10th Eng. ed. 468-484.

8 Platt, Cov. 461, 462; 4 Greenl. Cruise, Dig. 571 et seq. note; 4 Kent, Com.

duced if one sells an interest in real estate and takes his pay for it, and covenants for the title, though he has no title, and none actually passes; his covenant would run with the land so as to estop him if he should acquire a title.1

17. No assignment, however, can give to the assignee a right to recover rent in his own name which had become due, before the assignment made, as upon becoming due, it had become a chose in action and was not assignable.2

18. From the peculiar nature of the property which may be had in fee-farm rents, questions often arise how far these may be subdivided and apportioned, and what effect is to be ascribed to certain acts done by the party claiming the same. Thus, there is an entirely different rule applicable to rents service and rents charge, in respect to their apportionment in certain cases. If one having a rent service purchase a part of the land out of which it issues, it extinguishes the rent pro rata, and leaves it good for the balance. So if he release a part of his rent, the residue is not discharged.3 But if it be a rent charge, and the holder of the rent purchases any part of the premises, the rent is wholly extinct. So if he releases any part of the land which is charged, the balance is wholly discharged, and the rent will not be apportioned. But if a [*18] part of the lands charged with a rent, descend to the grantee of the rent, it being the act of the law and not of the grantee, the rent will not thereby be wholly extinguished, but only pro rata.5

472, 473; Lee, Abst. 371; Bally v. Wells, 3 Wils. 25, 29, where it is said: "When the thing to be done or omitted to be done concerns the lands or estate, that is the medium which creates the privity between the plaintiff and defendant. Taylor v. Owen, 2 Blackf. 301; Keppell v. Bailey, 2 Mylne & K. 517, 535, 540, 546; Lyon v. Parker, 45 Me. 474, directly in point. It may be added, that in carrying out the above rule it must be assumed that the doctrine of Sugden and the N. Y. court, is to be adopted rather than that said to be advanced by Lord Holt, as to the liability of the assignee of the grantor of a rent in fee, charged upon the land of the grantor. See Bally v. Wells, Wilm. 349; Morse v. Aldrich, 19 Pick. 449; Ackroyd v. Smith, 10 C. B. 187; Norman v. Wells, 17 Wend. 136; Van Rensselaer v. Hays, 19 N. Y. 89; Masury v. Southworth, 9 Ohio St. 347.

2 Burden v. Thayer, 3 Met. 76.

1 Trull v. Eastman, 3 Met. 121, 124.' 33 Cruise, Dig. 298; Lit. § 222; Tud. Lead. Cas. 196; Ingersoll v. Sergeant, 1 Whart. 337.

Lit. § 222; 3 Cruise, Dig. 301; Dennett v. Pass, 1 Bing. N. c. 388; Co. Lit. 148; Wms. Real Prop. 276, 18 Vin. Abr. 504; Brooke, Abr. "Apportionment," 17. Cruise, Dig. 303; Lit. § 224; Tud. Lead. Cas. 197; Wms. Real Prop. 276; Burt. Real Prop. § 1121.