Van Rensselaer v. Smith

Gould, J.

Although two of the cases above entitled are for the recovery of the rent arrears, and the other two are in ejectment, for the recovery of the lands, yet so many of the grounds taken for the defense are common to the two classes of suits, that it is perhaps as well to embrace all the points of the different defendants in one opinion; and thereafter, give the decision in each case, severally, by applying to it so much of the opinion as is appropriate thereto. And as we know by the great number of such suits upon our calendars, the real importance of a decision in any one; and are by the grounds assumed in the various arguments, fully informed that a discovery has been made in the law of this state; and that a simple reference to the older English authorities, (though under a law that will be found to be radically different from ours, and based on reasons which here either never existed or have ceased to exist,) will suffice to overturn the- unadvised decisions of our own courts; there seems to be a necessity for, certainly a propriety in, going more at length into the discussion of those reasons, and of some, at least, of those authorities than accords with either my wishes or my practice.

To comm&ce with a definition. We are told in argument, that a rent charge cannot exist-upon a term for life, or years, or any other limited term, (citing Littleton, § 217;) but in Littleton’s next section (§ 218) we find him saying “if a man grant a yearly rent, to be issuing out of his land, to another in fee, or in fee-tail, or for term of life &c., with a clause of distress, &c., then this is a rent charge.” The truth is, that Littleton defines two hinds of rent charge; and as the confusion, arising from a failure to note this, (in the earliest cases,) seems to have influenced, or may have influenced, some of the English authorities which are cited to prove that a rent-charge does not run with the land; it is likely to be essential to keep both kinds in view, in attempting to attain a just appreciation of the reasons for such decisions; in order to judge how far those reasons should control us.

Now before the statute, known (from the first words of its *138 preamble) as the statute “ quia emptores terrarum,” almost any rent or service could be reserved, as well upon a grant in fee, as on one in tail, for life or years, and so reserved it was called a rent-service; and the right to distrain for such rent, (or service if reserved, or both,) was by the common law, (or under statutes of so long standing as to be called common law,) incident to the reservation, or grant, without any words giving distress, &c. (Litt. § 216.) But “ by force of the statute of quia emptores terrarum, it behoved any man, who would reserve to himself a rent service, that the reversion be in himself ; for if he would make a feoffment in fee, without deed, reserving to him a certain rent, this reservation is void,” (Litt. § 215,) because the donor having no reversion, the tenant holds immediately of the lord (chief lord.) I would here) however, call attention to what, (so -far as either English or American cases have been cited,) I do not find noted: Coke, in his note to this § 215, says, “ and it is to be understood, that in case of the gift in tail, lease for life, or years, the fealty is- an incident inseparable to the reversion, so as the donor cannot grant the reversion over, and save to himself the fealty, or such like service; but the rent he may except;* because the rent, although it be incident to the reversion.” (i. e. go with it if not separated,) “yet it is not inseparably incident.” Coke cannot mean that a rent, reserved in a grant in fee-tail, so excepted, would be void; though what the defendants call the possibility of reverter has been separated from the rent. Tet it would seem that the English courts have, in substance, so decided, taking no note of this rule of Coke’s.

To return, however to Littleton. Having (in §§ 215, 216,) thus said what, by force of said statute, was the effect of a feoffment in fee without deed; he proceeds, in § 217, to give the effect—under that statute—of a feoffment by deed. “ But if a man, by deed indented, at this day, make, &c. a feoffment in fee, and by the same indenture he reserves to him and to his heirs, a certain rent, and that if the rent be behind, that ■it'shall be lawful for him and'7ms heirs to distrain, &c., such *139 a rent is a rent charge, because such lands are charged with such distress by force of the writing only, and not of common right.” And if it be without such a clause it is a rent-seck, “for that he cannot come to have the rent, if it be denied, by way of distress.” And upon this section Coke notes that “ it is a maxim in law, that the rent must be reserved to him from whom the estate in the land moveth, and not to a stranger.” This point also requires to be remembered, in considering the English cases. (See also Doctor and Student, 126, 127.) Further see" Littleton, § 346, and its note by Coke, for the express rule that, on a feoffment in fee, a reservation of a rent to the feoffor and his heirs is good.

So far, certainly, both Littleton and Coke would seem to say that the grantor and his heirs—such rent of course inher itable—could, upon a grant in fee if made by deed providing therefor, hold a rent which they could enforce by distress upon the land charged; and this, notwithstanding the statute, quia emptores. And they certainly express no limitation of time, (or number of successive grantees of the land,) as releasing the land from its liability to this distress, but say the grantor and his heirs—words universally known to mean, when not limited, heirs for ever.

As all the citations thus far, speak of reservations of rent, this seems the more appropriate place for commenting on the position of the defendants, that words of reservation, as “ yielding and paying,” never attach a condition to a fee. The case they cite, (Tallman v. Coffin, 4 Comst. 138,) does say so; but it was not necessary to the decision to say so; as the same hard result would have been attained, by merely holding that the lessee having failed to protect himself against the legal effect of the ending of his term, (which was that the lessor, by law, was entitled, thereupon, to immediate possession,) by not inserting in his lease provisions for the appraisal of, and payment for, his improvements, at or before the ending of his term, must abide the consequences of his neglect; and that, granting that, “ paying for the improvements” were a *140 condition^ still even a condition could not lengthen the term of letting. Yet I cannot but think that the result of that case would have appeared more just, and would have been more satisfactory even to the court, had a point been strained to bring the case within the authorities cited in support of the decision. For" those, all, hold that precisely such words do make a condition, where, without such a construction, the party would be without remedy. In 8 Cowen, 296, Chief Justice Savage says, of “ repairing,” &c. covenant lies for not repairing, and “ so similar words may amount to a condition, where without such construction the party would be without remedyas he would, substantially be, in the case at bar, if the express' covenants to pay, and the covenants to pay implied on the reservation, are all, as regards the land, void—as the defendants claim—and the grantee took an absolute fee of the land, released from all covenants for tent on the execution of the lease. And the case cited by Judge Savage, (2 Mod. 35,) holding—to prevent a forfeiture—that an action of covenant lay on similar words, did not hold, as cited to have done, what was merely the argument of counsel. Further, it will be seen, by reference to Littleton, § 374, and comparing Coke’s notes with the text, that a rent reserved by the words of the grantor, is put as coming within Littleton’s principle; that although the particular tenant never signed the indenture, “ but inasmuch as he entered and agreed to have the lands by force of the indenture, he is bound to perform the conditions within the sanie indenture, if he will have the land.”

That mere words of rendering do make a covenant—of course liable to be called a condition within the reason above— there are numerous authorities in point. (Powell on Cont. 242. 1 Ventris, 10. 1 Bac. Abr. 530. Carthew, 135, 136, 162, 282. 3 T. R. 402. 1 Saund. 241 b, note. Also, 5 Selden, 20.) And that this is true, even where the words are used in a deed poll by the grantor, see in point, Co. Litt. § 217, note; Cro. Jac. 240, 399, 522; 2 Mod. 92. In the case of Main v. Feathers, (21 Barb.) there was but little argument *141 made; and this point was not distinctly taken by the defense. Therefore that decision touched this point, without going into the particularity of the explanation abové, merely to show that sound law—as well' as pure morals—forbid a man’s receiving the benefit of a particular contract, without coming under the obligation to perform the corresponding duty, expressed in the same contract, and for which the benefit he receives was the sole consideration. This latter foundation for the duty will however be more fully considered hereafter.

If we have thus stated the law, but as it stood prior to, and as altered by the statute, quia emflores, it is best—before proceeding to consider the -next statute change, as made by the English act concerning grantees of reversions, &c.—to note the original reason, why any and all contracts did not, of course, pass according to their tenor, for and against the holders of the subject matter, about which such contracts were made, even where assigns were named therein. “ For avoiding maintenance, suppression of right and stirring up of suits; nothing in action, entry, or re-entry, can be granted over.” (Co. Litt. 214 a.) That is, at common law, no chose in action was assignable. (See preamble of Stat. 32 Hen. 8 , ch. 34, in 1 Saund. 238, n. 2.) So that, though by granting over the reversion, a lessor could give to a grantee of such reversion a right to distrain for the rent, (where the grantee could act in rem, by himself or bailiff, without the assistance of a suit at law,) yet such grantee could not re-enter and oust the tenant, as the lessor or his heirs might have done. But Littleton wrote before that statute of 32 Henry 8. . By that statute such grantee might re-enter, as the lessor in his place might have done. Though it is to be remembered that the statute was, by the courts, construed not to extend to gifts in tail. (See Co. Litt. 215 a.)

Under the provisions of this statute, (to be found, sufficiently in detail for most purposes, in 1 Saunders, 238, &c.) and the common law as thereby modified, have been had the decisions of the English courts, which are claimed to control *142 our action. The prominent one, upon the principle involved, is Spencer’s case, (5 Coke, 16, &c.) It was there “resolved” as follows: If - a lessee covenant for himself and assigns to make a new thing on the demised premises, as the assignee is to take the benefit of it, it shall hind him by the express tvords. But even express words shall not bind him to pay a merely collateral sum to the lessor, or to a stranger, because it in no manner touches or concerns the thing demised, or that was assigned over. Again ; on a lease for years, of' land, with a stock or sum of money, rendering rent; if the lessee covenant for him and his assigns to deliver the stock or sum at the end of the term, the assignee (of land) shall not be charged with this covenat, as “the rent did not issue out of the stock, but out of the land onlyand it is not certain that the stock or sum would come to the assignee. A gain ; if a man makes a lease by this word concessi or demisi, which implies a cove-' nant, (on lessor’s part,) and the assignee of the lessee be evicted, he shall have a writ of covenant against lessor, &c. “For the lessee and his assignee hath the yearly rents and profits of the land, for an annual rent; therefore it is reasonable, when he hath employed his cost upon the land, and be evicted, (whereby he loses all,) he shall .take such benefit of the demise as the first lessee might, and the lessor hath no other prejudice, than his express contract with the first lessee bound him to." Again; (as the reason of one of the resolutions) “reason requires that they who shall take benefit of such covenant when the lessor makes it with the lessee, should on the other side be bound by the like covenant, when the lessee makes it with the lessor.”' And the substance of the last position in that case is, that the principles there put forth apply to any unlimited succession of assignees, on both sides—lessor and lessee.

The English decisions of later dates are considered or claimed to he founded on, and to have followed, this case; and while its plain and most satisfactory reasoning clearly covers the case of all rents proper, and would surely fasten all upon the land, this very case, reasons- and all, is so- construed by later element* *143 ary writers, claiming to be supported by English decisions, (as Platt on Covenants, 65, 466, 475, and 1 Smith’s Leading Cases, Spencer’s case,) that it, in connection with the statute guia emptores, settles the law to be that even a rent, which was the consideration of the grant to the lessee—and, as in the cases before us the only consideration, therefor—is, as regards the land out of which it is reserved, and out of which it is an annual issue, merely void, unless the lessor retain in himself a reversion, or the possibility of a reverter ; and that on a lease in'fee he does not retain any such; and that therefore the lessee, though personally bound by the contract, and having no personal responsibility as the case may well be, as he paid nothing for his lease, may the next day after getting his lease, himself grant a fee absolute of the land; and thereby put the land itself entirely beyond the reach of the lessor, who has thus received nothing for his land. And this, notwithstanding the rent is, by the terms of the indenture, charged upon the land by clause of both distress and re-entry; thus being a rent charge; and also notwithstanding the indenture by its terms includes the lessee’s assigns, as well in the clause of reservation, as in the express covenants. This may be law; it is not justice. Nor does it come within Lord Coke’s maxim, that “law is the perfection of reason.” And it is flatly against Littleton, § 217, and 346, note, as above cited.

The prominent decision, cited by these writers, and almost the only one that names a rent charge as not running with the land, is that of Brewster v. Kidgell, or Kichell, or Kichin, spelled variously, which is reported nine different times, making a great apparent array of authorities. There are, however, several reasons why it is no authority for the purposes to which it is cited. 1st. The point did not arise in the case, at all, and whatever, is said to such purport, is a mere dictum. 2d. It is the dictum of but one of four judges; that one, being indeed, Lord Holt; but the other three deciding the case. 3d. That was a case of what these defendants say is not a rent charge, i. e. where Langford, Kidgell’s grantor, *144 in consideration of £800, money to him paid by Brewster, granted to her and her heirs, &c., -(who received no land by the grant,) a rent-charge of £40 upon his manor of Butler’s, with a clause of distress and covenant for further assurance; and by a subsequent deed he made a covenant that the rent, “freed of all taxes,” should forever after be duly paid. Subsequently, parliament levied a new tax; and the suit reported was no suit at all, but merely a case made up on a wager that this tax could not be lawfully deducted from the rent. And that was the only point in the case; and judgment was for the plaintiff, as against the terre-tenant, (Kidgell, to whom Langford granted the fee, after the rent was so charged,) that he ¡must pay the rent without deducting this tax, which he had to pay also. A full report of this case is in Comberbach, 424 and 466. At the latter page a question is stated, “whether the assignee of the land, in this case, can be charged with the cov*. enant of the grantor, for it is not a covenant that runs with the land, but collateral to it; but judgment was given for the plaintiff upon the first point,” as above. The other eight citations of this case are Holt, 175, 669; Carthew, 438; 1 Salk. 198; 2 id. 615; 3 id. 340; 5 Mod. 368; 12 id. 160, 171. There can, however, be no objection (so far as the cases before us are concerned) to agreeing with the dictum as far as it goes with the case; which is that where there was no consideration (in any way connected with, or growing out of, the land or the sale of it,) for charging the land with what was called a rent; as for that so-called rent, it never could run with the land, although nominally charged upon it.

Russell v. Stokes, (1 H. Bl. 566,) cited as being to the same purpbrt, was decided upon the point that Stokes, (plaintiff in the court below,) though nominally joining in the grant of the land, in which the rent was reserved, had then no interest in the land, being but in possession as tenant at will, and a covenant to him could have nothing to do with the land. Many of the other cases, so cited, will be found to be as foreign to the reasons of Coke. But as, in this state, it is not *145 (in these cases) absolutely necessary to be sustained by English authorities—for reasons that can, I think, be made apparent—there is no occasion to inciimber this case further than to say that there are English decisions which go nearly, and probably quite, the length of saying that no rent charge runs with the land, as well as that there needs must be a reversion in the covenantee, to enable him to sue the covenantor’s assigns; though many of the cases, cited as so deciding, are not in point, ps they are concerning covenants conceded to be collateral, and are plainly not on the footing of any covenant to pay a rent proper. Such are 3 Term Reports, 402; 1 New Reports, (or 4 Bosanquet & Puller,) 162; 2 East, 575; 6 id. 304, 5; 10 id. 135. And the reasoning of nearly every one of these cases would sustain the covenant as against the assignee, if the covenant were in, or accompanying, the conveyance of the land. And if, in connection with such sound reasoning, we find in our own courts decisions enough to give even a color of authority, our decisions, according with common sense and common justice, are better for us than foreign decisions against such wholesome grounds of reliance. Especially when we have such good foreign authority as 3 Term Reports, 403, for. saying that abiding by the English decisions sustains defences “ of a most unrighteous and unconscionable nature;” though there by no means as much so as those in these cases.

In the former decisions of this court, it has not been deemed absolutely indispensable to cite and comment on all the cases that have been decided any where;-and barely enough of the principles of the English law has been cited, to show that all reason was on the side of the plaintiffs. ¡Nor was our own law entered into in detail, as there have been enough decisions here, fully to authorize our saying, (without such detail,) that here a rent charge runs with the land. But as the attempt is here made, (on the asserted strength of the older authorities,) to overthrow the basis of all these decisions ; greater particularity and fullness are now indispensable. *146 Still an accurate examination of the grounds taken by these defendants will, I think, show that even now we need not examine, or follow, all these foreign decisions; And as the defendants’ reliance is on the force of the statute quia emptores, (they asserting that our statute “ concerning tenures,” passed February 20, 1787, is the full equivalent of that statute,) which they claim has destroyed all tenure under a lease in fee; and thereby done away with the relation of landlord and tenant, as between the lessor and lessee in such a lease; and, by consequence, has put the lessee in possession of a fee simple absolute—the land discharged from any rent to any body—it is desirable to ascertain what is the state of the law on principle and in justice, without this statute; and then to see if our statute of tenures, engrafted upon and qualified by our other laws, is really equivalent to that statute; or what, if any, is the difference between the two, as to purpose and effect.

As has been already stated, the principle of the common law, which prevented the direct transfer of any contract or covenant, as well in regard to its benefits as its burdens, was that a chose in action was not assignable. To avoid the obvious injustice of this, where covenants entered into the very essence of transfers of estates in lands, the common law permitted a practical evasion of (under the name of an exception to) its rule,, in the case of covenants which it construed to be capable of running with the land; by allowing their transfer, not by direct assignment, but as incident to the land, or some estate in it, where that was sold or assigned. And combining the decisions, it may fairly be said that a covenant is so “ capable ” when it affects the land, although not directly to be performed on it, provided it tend to increase or diminish its value in the hands of the holder. Even this was to be qualified, by saying that if there were no such relation between the parties as would, by the feudal law, have' created tenure and privity of estate, a covenant should run with the land only for its benefit, and not for its *147 burden. But this qualification was itself restricted to those cases where the covenant was created by some instrument which did not pass the estate to be charged with the burden. Since where the reservations or covenants are in the very conveyance by which the covenantor) &c. acquired his land, the performance of those covenants, &c¡ plainly forms part of the consideration, without which the conveyance would not have been made. (See an able discussion, 1 Smith’s Lead. Cases, ed. 1847, pp. 135 to 138; ed. 1855, p. 181, &c.) And whenever (as in some states) there is no statute of quia emptores, or its equivalent, in force, a conveyance in fee, with covenants, &c. for rent creates privity of estate; and proper covenants in that conveyance (of which to pay rent, &c. is always one) run with the land. And an English case ( 3 Wilson, 26 ) has well held that covenants are, at common law, as well capable of running with incorporeal hereditaments as with land; and a rent is at least an incorporeal hereditament. (See 1 Smith’s Lead. Cases, ed. 1847, p. 116, &c.) And in this state, by statute, (1 R. S. 1st ed. 750, § 10,) “ hereditaments ” of any kind are within the term “ lands,” in all our statutes relating to tenure, assignability of covenants, &c., while in De Peyster v. Michael, (2 Selden, 506,) the court of appeals hold that, under these leases in fee, “the grantor owns -the rent and the grantee owns the land. Each has an estate of inheritance in his own part," (meaning his part of the one whole fee simple absolute in the land.)

When the statute quia emptores was passed in England, (intended for the benefit of the chief lord, not of the tenant,) the policy of that law was held to be, to discourage all relations between the grantor of land and the grantee, which could in any way impair or restrain the estate granted to the latter; and consequently that' policy called the covenants of the grantee, (no matter how absolutely of the veiy essence of the conveyance,) personal, and not binding the land in the hands of its assignee. But since the reasons assigned for this policy were, to prevent sub-infeudations, (for the benefit *148 of the chief lord;) and for the benefit of the assignee, to protect him from the bürden of a covenant or condition to which he did not consent, and for which he received no consideration; and of which, indeed, he was, or might be, entirely ignorant, until actually evicted for a forfeiture, or sued on the covenant: and since those reasons, practically or in fact, never existed in this state, (see as to feuds, Revisers’ Reports, part 2, ch. 1,) the maxim “ cessante ratione, cessat et ipsa lex’’ is completely applicable. And as the absolute rule that choses in action are not assignable, has been much modified, that also, has measurably ceased to afford a foundation for the rule. Therefore, it would seem untirely reasonable to resort to the old test, of whether the covenant has been accompanied by a conveyance. If it has, it would be only fair that the assignee should continue to perform that which must be seen to have been part of the price of his land, (in the cases at bar the only price,) and without which this very land would not have been transmitted from the covenantee (original grantor) through the lessee or grantee to the assignee himself. The land which he holds is the consideration he has received for his contract, or burden. Where there is no such accompanying conveyance, the consideration of the covenant is necessarily foreign to the land; and the title of the covenantor is independent of the stipulations of the covenant; and as these relations, and all other relations which are indicated by the technical phrase, “ privity of estate,” are absent; there is no reason why the assignee should be bound by the covenant. But when there is such accompanying conveyance, no future party has a right to complain of any lawful burden attendant upon it, whether of covenant or condition; since, independent of the conveyance, neither estate nor burden could ever have reached him. (1 Smith’s Lead. Cases, ed. 1855, pp. 181 to 183.) But what are our statutes which are claimed "to be equivalent to the statute quia emptores, since that statute itself never existed ■ here. First, that of 20th of February, 1787, “ concerning tenures,” *149 (1 Revised Laws, 70,) and before this what was our law of tenures. Under the Dutch government no feudal tenures were known. And by the first grant to the Duke of York, from Charles 2, dated 12th March, 1664, confirmed by patent, 1674, all lands were to be held in free and common socage; so that (as feudal tenures never existed here) a great part of that statute of 1787 was merely unnecessary. So far as it takes away particular incidents of socage tenure, it is operative; while its 5th section, entirely and by absolute exception, saves out of its operation all then existing “ rents certain, or other services incident to tenure in common soc-age,” due or to grow due to any one; and also, “ the fealty and distress incident thereunto.” The revisers, who embodied our laws in the revised statutes, had this act expressly repealed, (3 R. S. 1st ed. 129,) and put in lieu of it sections 2, 3 and 4, 1 R. S. 1st ed. 718, which remain unaltered, and are our present law. The revisers, in reporting this last act to the legislature which passed it, say: “ Deeming it important that all lands in this state should be held upon a uniform tenure, and still more so, that all lands should be subject to the rents and services which have heretofore obtained among our citizens, and the rights annexed thereto by the common law, the revisers, in section 3, have made all lands allodial, and in section 4 have expressly subjected them to those incidents of the socage tenure.” (See Revisers’ Reports, part 2, ch. 1.) And that legislature passed those sections just as reported, with this accompanying construction before them, which is fully equivalent to a preamble. '

This section 4 is very important in the case, (and though its number is given on the points, no attention was paid to it,) for the act of February, 1787, being repealed, this section leaves all lands, in the revisers’ words just cited, “ subject to' the rents and services which have heretofore obtained, &c. and to the rights annexed thereto by the common law,” (not by the statute quia emptores,) and extends this provision, so that it reaches not merely then existing rents, &e. but *150 “ any rents or services certain, which at any time heretofore have been, or hereafter may be, created or reserved.” So that whatever might have been the effect of the statute of 1787, on leases made between its passage and 1830, (when the revised statutes took effect,) in cases during that time tried, there is now no effect of that statute, touching any conveyance whatever. (a)

Entirely freed, then, from the statute quia emptores, we turn to Littleton, § 216, for “ the rights annexed by the common law” to such “rents and services” as are in these leases contained, and we find that “ if a man make a feoffment in fee simple by deed, yielding to him and to his heirs a certain rent, this is a rent service, and for this he may distrain of common right.” And Coke’s note to this section is, that upon such a feoffment in fee, (even without deed, in his time,) the feoffor might, at common law, have reserved a rent to him, and to his heirs, “ because it was a rent service, and a tenure was created.” And that such rent service was an incident of the socage tenure, (one of “ those incidents of the socage tenure,” to which, as above, the revisers “ have expressly subjected all lands” in this state.) (See 2 Bl. 79 , 80; Jacob’s Law Dic. “ socage;" vand Coke Lit. 86, a.) “ The legal termination agium,” (as in socagium,) “in composition signifieth service, or duty.” Whether such rents and services as are reserved in the leases before us, be in law and in fact such “ as have heretofore obtained among our citizens,” will more fully appear hereafter.

In the mean time, before leaving this statute, it should be observed that, in this 4th section, the words “ take away or discharge ” must have the legal effect of “ not impair,” or to leave entire and unaffected; and will fully bear the construction that the lands are subject to (that those “rents and serv *151 ices” carry with them) the rights annexed thereto by the common law; one of which is the right to the benefit of the tenure which is thereby created.

Next, of our law, as to the assignability of such, or any, covenants or conditions. Since the statute, 32 Henry 8, ch. 34, (like that of quia emptores,) had no existence here, we must resort to a statute passed in 1788, which was like the one of Henry 8, and enabled grantees of reversions to take advantage of conditions and covenants in leases. (1 R. L. 363.) That statute made the covenant, as a contract, assignable; • and such assignment carried with it the “ very privity of contract,” which would continue, after the reversion had been assigned over, to enforce a remedy for breach accruing during the holding of the reversion. (See in point, Carthew, 289; (b) 1 Saund. 241, a, b.) Our statute, as found in 1 R. L. 363,4, is, however, not the statute of 1788, which is to be found in the compiled laws of Kent & Radcliff, vol. 1, p. 105, where the act consists of merely sections 1 and 2 of the act as printed in the revised laws of 1813. Section 3, is, however, of the last consequence, in the cases before us.

That section was enacted by itself, in 1805. (See ch. 98, Laws of Sess. 28, in 4th vol. of Webster & Skinner’s Session *152 Laws, p. 254.) The preamble to this act, connected with the act, is thus: “ Whereas .it hath been doubted, whether the provisions contained in the act, entitled 'An act to enable grantees of reversions to take advantage of the conditions to be performed by lessees/ hereby intended to be amended, extend to any but assignees of reversions dependent on estates for life or years; and whereas leases or grants in fee, reserving rents, have long since been in use in this state: and to remove all doubts respecting the construction of the aforesaid act: Be it enacted, That all the provisions of said act, and the remedies thereby -given, shall be construed to eodend as well to grants or leases in fee reserving rents, as to 'leases for life and years, any law, usage or custom to the contrary thereof notwithstanding(being said 3d section precisely.)

Here is legislative information that the rents, &c., reserved in these “ leases in fee,” are “ the rents and services which have heretofore obtained among our citizens,” spoken of by the revisers (as above.) Secondly. This is a legislative declaration that “ leases in fee reserving rents,” are valid, subsisting leases, in the hands of the assignees of both parties to them, and at the very least, brings this case within Ld. Holt’s decision, (C arthew, 289, fully affirmed, 1 Saund. 241 a, b,) that by force • of the statute “ the very privity of contract” is transferred, as between the assignees of the lessor and lessee of such leases. Thirdly. This act makes the lessor’s interest in such a lease, an entity assignable—with its remedies—as against the assignees of the lessee; to be enforced by entry for non-payment of rent, or other forfeiture. Fourthly. Applying an act, enabling “ grantees of reversions” to hold certain rights and enforce certain remedies, by reason of being assignees of reversions; it, of necessity, maltes the lessor’s interest in such a lease—as well in his own hands, as in those of his assignees— pro hac vice equivalent to a reversion. Fifthly. Being subsequent (as was the act it amended) to the law concerning tenures, it is, if, and so far as, repugnant- to that law, a repealing act, even without the express words “ any law,” &c.

*153 Following this statute to the present revision, (1 R. S. 1st ed. 747, §§ 23, 24; 748, § 25,) we find the whole form altered, and some material changes in the substance; as well as (in the margin) a running commentary, by the revisers, bearing on the intent (and construction) of the new sections. This marginal comment, on § 23, is “ rights of grantees, assignees, &c. of lessors of demised lands,” not confining it to reversions; and on § 24) “ rights of lessees and their assignees,” not limited to be against grantees of reversions ; as in 1 R. L. 364, § 2, it is. Next it is to be noted that, in the 2d and 3d lines of § 23, “ the assignees of the lessor of any demise, and the hens and personal representatives of the lessor, grantee or assignee,” are entirely new words, found in this act only, neither those, nor any equivalent words, being in the act of 1788, or that of 32 Henry 8. And next, in the last line but one, “ lessor had, or might have had, if such reversion had remained in such lessor,”—here the first “ had” is added to the prior acts; thus giving to assignees, &c. all such remedies as the lessor had, (irrespective of any reversion,) and all such as he might have had, if a reversion had remained in him. All these alterations go to affirm under this act the positions above taken as to the third section enacted in 1805. In framing the 24th section, there were made some quite as material omissions, all tending to the same point. Thus, after the commencing words, “ the lessees of any lands,” the words (of the former acts) “ for term of years, or life, or lives,” are omitted, leaving it to apply to leases in fee; and the word “immediate,” (against his immediate lessor,) is new; while the words of § 2, of 1788, ■“ who shall have any gift or grant,” &c. of the reversion of the same manors,” (in the old act used to describe those against whom the lessee, &c. might have his remedies,) are entirely wanting. -Thus—acting correlatively, on the subject, with the word had in the prior sections—preventing the liability from being limited to the reversioner.

To. make the case still clearer, the 25th section extends the provisions of both these sections to “grants or leases in fee, *154 reserving rents, as well as, equally with, any other lease.” Thus the revised statutes continue in full force the 3d section of the former act,-while very essentially altering the first two; and the effect of that third section, now § 25, has been sufficiently considered. If it be, still, said that a reversion is necesary to found the rights, &c., named in the act, and thereby given, a reversion is made, for this purpose, by force of this section. If (under §§ 23, 24, as I understand them,) a reversion be not necessary, the defendants' whole argument falls; and § 25 remains, declaring that leases in fee, reserving rents are valid and subsisting leases for both lessor and lessee, and their assignees, and capable of being enforced, according to their tenor, by and against both. See 3 Denio, 140 , 141, and note by the reporter, (now Judge Denio,) fully sustaining these positions. The case of Depeyster v. Michael (at page 506, 2 iSeld.,) goes still further; in holding that, notwithstanding the statutes there cited, “the right of alienation is inseparably incident to the estate of both lessor and lessee in a lease in fee,” and that “ the power of the lessor to alien his rent cannot be restrained.” (c)

*155 This would seem conclusive, upon the further point, (made as to the whole case and especially as to the remedy by ejectment,) that under or by a lease in fee reserving rent, there is no relation of landlord and tenant; and so the common law *156 remedies between landlord and tenant cannot exist; and the statute remedy (2 R. S. 1st ed. 505; 4th ed. 750) is not capable of enforcement. This position in fact, and of necessity, takes the ground that, though called a lease, it is really a grant in fee simple absolute. This is difficult ground to main *157 tain, when the express statute not only legalizes them as leases, hut speaks of them in immediate connection with, and as un- . equivocally leases, as leases for years. The very nature of a lease is to make that relation.

It is not allowable, now, to say that tenure (in technical strictness, and according to its feudal meaning) is necessary to that relation. That technical term is strictly feudal, and by our statute has ceased to exist in any shape, even as regards the state. The duty of allegiance, the only duty now owed to the state, is common to every citizen, (independently of any .holding of land,) and has no connection with the land. He no more holds his land by that tenure, than he does his horse. (See Taylor’s Landlord and Tenant, §§ 10, 11.) But if, departing from this technical strictness, the word is used to mean, in regard to land, what is commonly understood by it, and what alone the law can now interpret it to mean; it covers every case where one holds land, &c., of or from another upon any terms or conditions, or subject to any reservation, whereby the absolute ownership of the estate is qualified. The terms of possession, or the mode and limit of enjoyment, being parcel of, and taking the shape of, a contract, (express, or implied, as the estate or the case may be,) constitute a lease, and, the parties to this lease are in the relation of, and are, landlord and tenant. (Taylor’s Landlord and Tenant, § 12.) Taylor also says “the payment and receipt of rent is the ordinary acknowledgment of a tenancy.” (Id. § 22.)

But were a technical tenure necessary to make that relation,' the revisers (as above cited as to § 4j) show the lands that are held under these leases in fee, are “subject to those rents and services incidents of the socage tenure;” which incidents carried with them, at common law, as well as in common sense, the relation incident thereto—inherent in the incident of liability to pay rent proper—the relation of landlord and tenant.

But our statutes will sufficiently explain this point also; and that in the very statute that gives ejectment for non-pay *158 ment of rent, (2 R. S. 1st ed. 505, 4th ed. 750.) In the first place the title of the act; “ of the recovery of possession of demised premises for non-payment of rent by ejectment.” It has no qualification, as to being a landlord’s remedy; thus conceding that he who is entitled to the rent, is entitled to the remedy. In its first section (§ 30,) the condition on which ejectment may be brought, is, “if the landlord has a subsisting right by law to re-enter for the non-payment of such rent.’) And has not the defendant’s whole argument proceeded on the basis that no one but the landlord can have that right ? And is that not one of the rights expressly reserved in a lease which the statute says is good; (of course, malcing good all lawful conditions therein.) And, further, the statute has made this very right of entry, in such a lease, assignable, with its remedies. (§ 23, 25, as above cited.) These two sections positively give this remedy by entry, (and entry and re-entry are all one, Littleton, § 347,) to the assignees of lessors in fee, as their lessor had it (by the tenor of his lease) thus making the lessor a landlord.

Again (in § 33, p. 506,) the margin of first edition, published by the revisers, (so that it is a contemporaneous construction of the surest authority;) had “when premises to be restored to tenant;” while the body of the section has it, “premises shall be restored to lessee.” The same section says, when possession has been taken “by the landlord, the lessee, his assigns, &c., may pay or tender to the lessor all the rent in arrear,” &c., while by the 30th section the rent being in arrear to the landlord; and he having sued and taken possession ; and now, to recover this possession from him, those arrears of rent are to be paid to the lessor ; the two (landlord and lessor,) are of course the same.person, and a lessor is none the less a lessor, for having given a lease in fee. The 34th section makes this equally clear; and the whole act, as well as the one for which this was substituted, (1 R. L. 440, &c.,) uses lessor and landlord, and lessee and tenant, as convertible terms.

Nothing but the somewhat peculiar nature of this litigation *159 could justify going into such details, on such a point; as, for any ordinary purpose, the first maxim of all construction would suffice, viz., that words are to he taken in their most usual and popular sense, until some cause be shown to the contrary. And no one will pretend that in the usual and popular sense, there is any doubt that any lessor is a landlord, and any lessee a tenant; or that rent is paid by a tenant and received by a landlord.

Still there are, in this state, authorities Sufficient to settle this question for this state. In Van Rensselaer v. Snyder, (3 Kern. 302,) on one of these leases, Gardiner, Gh. J., says, “ the contract between the landlord and tenant in this case provides,” &c.; and he so calls the parties in the whole decision. In Hunt v. Comstock, (15 Wend. 667,) Nelson, Ch. J., speaks of premises “ rented,” or “ let” at a rent, as signifying the relation of landlord and tenant, to found summary ejectment. ” And even Depeyster v. Michaels, (2 Seld. 467,) while it undoubtedly decides that the lessor in fee had no reversion (sufficient to found thereon covenants in restraint of alienation;) and that between such lessor and lessee there was no technical English tenure, does not decide that they are not landlord and tenant. But, (page 507) speaks of the “ alienation of the tenant’s interest in the land.” And even if it did say what is claimed, that case (decided in 1852,) cannot overrule 3 Kern. 303, (decided 3 years later.) If they clash, the former is overruled.

But it is claimed that the statute of 1846, (Laws of 1846, p. 369,) having abolished distress for rent, has thereby changed the nature of this rent. One view of this is answered in Main v. Feathers, (21 Barb.) But the defendants now take another view of that act; and take us back of the statute, to the niceties of a common laxo re-entry; giving the distinction between that and a statute re-entry. About this there need be no discussion. This action is- professedly on the statute; the statute having sxibstituted an ejectment, (or a statute re-entry by suit) in place of the common law actual *160 re-entry to be followed by ejectment by suit. And the preamble to § 23, 1 R. L. 440, in lieu of which § 30 (above cited) was enacted; says, that § 23 was passed to avoid “the niceties that attend re-entries at.common law, and forasmuch as, after such re-entry the landlord or lessor must still recover in ejectment.” It therefore gave ejectment without formal re-entry; i. e. gave re-entry by ejectment; and I confess myself unable to see any thing in the new application, by the defendants, of this legal fact. They say the legislature, in the act of 1846, “ did not intend in the use of the word reentry, to provide a new action of ejectment.” Certainly not. But they meant to apply a known action in a new way; (so that- abolishing the remedy by actual distress, should leave the landlord’s right to ejectment for rent arrears, substantially unimpaired,) as they say “ whenever the right of re-entry is reserved and given to a grantor or lessor in any grant or lease, in default of sufficiency of goods and chattels, whereon to dis-train for any rent due, such re-entry may be made at any time after default in payment, &c., provided 15 days’ previous notice of such intention to re-enter, be given by the grantor or lessor, &c., notwithstanding there may be a sufficiency of goods, &c.” Terms so broad and general, would seem quite sufficient to' cover a statute manner of making such re-entry, as well as a common law one. One of the judges of the court of appeals, (whose long holding of that office, and his high standing there, give great weight to his construction of any statute,) has, by placing section 3 of 1846, as section 10, (2 R. S. 651, 4th ed. by H. Denio and Wm. Tracy,) in and of the act which gives this statute ejectment, shown that he understood it to apply to that remedy; not to repeal the 9 preceding sections, as it, (the act) must, if these defendants are correct, since original section 30 gives ■ the remedy only “ where no sufficient distress can be found on the premises.”

It is, besides, decided by the court of appeals, (3 Kern. 303,) that this section 3, of 1846, amounts to saying that *161 “ thereafter the tenant could not have a sufficient distress” on his premises. This being so, I see no process of reasoning by which the latter statute can be prevented from, in effect, striking out of, or rendering inoperative in, section 30, the words “ where no sufficient distress,” &c.; especially as it had done this very thing, by the same words in these leases. (See 3 Kern. 303, 305.) This case in 3 Kern, however, expressly holds, that the statute of 1846 having taken away one remedy, “ provided a new remedy” for the case; which remedy is independent of the contract. (See also 2 Barb. 319 .)

As to the defendants’ points in regard to the service of the 15 days’ notice, and the sufficiency of that notice; were their positions sound in law, some, at least, of them are not true, in these cases, as to the fact.

1. They say it is not alleged to have been served on the lessee or his assigns, &c., but on the defendant, who is not alleged to be the assignee, but merely in possession. How, in the case of Christie and others, plaintiffs, the complaint, (and the case comes up on demurrer to it) alleges that ever since the execution of the original lease, the premises have been held and occupied by the lessee, his heirs and assigns, under said lease; and the same complaint says “ the said defendant is in possession of necessity, as either heir or assignee, and either is within the statute. In the case where Ball is defendant, the complaint, and nothing appears on the trial ■ to vary it, is perfectly explicit and full. At folio 34, 5, it has the same averment as in the Christie case, of continued possession in the lessee, his hens or assigns; at folio 35, 6, it avers that the lessee’s interest, &c., by assignment legally made, came to and vested in said defendant; at folio 39, “ the premises of which defendant was assigneeand “ after the defendant became, and while he was assignee as aforesaidand at folio 41, “ the plaintiff gave notice in writing to the said defendant and said John Ball, assignee as aforesaid.”

2. That it was not served till after 'the rent became due; and that the notice itself shows that it was only a cautionary *162 notice, that if thereafter there should be default in payment of rent, the plaintiff would certainly re-enter. In the complaint against Ball, the purport only of the notice is given, thus : that the plaintiff intended to re-enter “ in pursuance of the covenants, reservations and conditions” of the lease;, while in the suit of Okristie atíd others, plaintiffs, this purport is more fully given; “ that more than fifteen days prior to the commencement of this action, plaintiffs served a notice,” &c., declaring that plaintiffs intended to re-enter under said lease, unless the said arrears of rent f should be paid within fifteen days after the service of said notice. Tet the defendants say this is not a notice that a certain amount of rent is due, and if not paid there will be a re-entry. As to the Ball case, a re-entry in pursuance, Sso., could be had only after breach; and the notice must be read as meaning, because the covenants, Sso., had been broken. A notice of intention to reenter, provided default should thereafter be made, would be merely a bald absurdity, amounting to po more than that the plaintiff considered his lease and its covenants valid in law. That notice might as well be given fifteen years before.suit, as fifteen days. But aside from argument, this point is decided in 3 Kern. 304 and 306.

The point that the plaintiff by serving the fifteen days’ notice, required by the statute of 1846, to entitle him to the reentry, waived the previous forfeiture, because such notice is equivalent to accepting rent, as an acknowledgment of an existing tenancy, certainly has the merit of novelty, in this country. And it probably has not in any other country had a parallel since an English court held that making the affidavit, to move for leave to plead the statute of limitations, was a waiver of the defense as being an acknowledgment of the debt. (4 East, 604.) If taking the course prescribed by the statute, to avail one’s self of the statute remedy, be a waiver of the right to that remedy, then the statute defeats itself, and is practically, so much blank paper.

The case of Eepeyster v. Michaels on one of these leases in *163 fee, (2 Seld. 467,) is claimed by the defendants to have decided the whole controversy; and in them favor. It decided that the plaintiffs have not a reversion, or such an interest, in the land as will enable them to attach thereto conditions that are against the policy of the law, as being in general restraint of alienation. But it goes no further. There is (in that case or elsewhere,) no decision or intimation, that a covenant to pay rent (with its incidents) is in restraint of alienation. . The case just cited, says, (at page 507,) “the lessor’s right of entry for breach of lawful conditions, is not defeated or impaired by the sale of the lessee’s interest in the.land ;” and, “rent is separable from the ownership in fee of the land; but the right of alienation is not. The reservation of rent does not affect the alienation of the tenant’s interest in the land;” and it then goes on with clear and satisfactory reasons why a reservation of part of sale money, (differing from reservation of rent,) is illegal; and, on page 508, adds; “the covenant of the lessee to pay, which runs with the land, ana the lessor’s right to reenter for non-payment, are practically a sufficient security for the rent;” and until the defendants get that case reversed, such security will be found sufficient.

The further position, that we have no estates in fee upon condition, finds no countenance from that case. And the case in 3 Kern. 302 decides that the final condition, in all. these leases (one entirely separate from the covenant to pay rent with its condition of re-entry for non-payment attached,) is a valid condition, for this very purpose of re-entry for nonpayment of rent; that being the very point of the case.

As to the ground, (taken at various stages of the argument,) that one or another right, or right of action is not assignable; it might be well to consider that the code has, on that head, marvellously little of the common law aversion “to stirring up of suits,” and that it is now rather difficult to find any right or interest that is not assignable.

I am unable to see any sound reason, or find any binding decision, that would authorize the sustaining of either of the *164 demurrers; or that would reverse the judgment of the circuit against Ball. As I cannot hut hold, that for the state of New York, the statutes of New York are more obligatory than all the statutes and decisions of other states and nations; and that by our statutes (certainly since 1805,) the leases in question have been valid as leases; and that the estates, or rights by and under them, (of both lessor and lessee,) have been assignable; and that, at least since January 1st, 1830, the statute remedy of re-entry by ejectment has been applicable by and to the parties to such leases; which remedy is not impaired by the statute of 1846.

In Van Rensselaer v. Hays—Judgment at the circuit should be affirmed. In Van Rensselaer v. Ball-New trial denied. In Van Rensslaer v. Smith, and Christie and others v. De Friest, the decisions overruling the demurrers should be affirmed.

Wright, J.

The first two of these actions are to recover arrears of rent; the others, ejectment for the non-payment of rent. The rent was reserved in grants in fee, or fee farm leases, of parcel of the manor of Rensselaerwick.

The original indentures granted the land, with the appurtenances, to the grantees named therein, and their heirs and assigns forever, yielding and paying therefor a perpetual annual rent in wheat and fowls, and performing annually one day’s service with carriage and horses. The grantees for themselves, their heirs, executors, administrators and assigns, covenanted to pay the yearly rent so reserved, and agreed that if such rent or any part thereof, happened to be behind and unpaid for the space of twenty-eight days next after the days of payment, it should and might be lawful for the grantor, his heirs and assigns, to distrain for such rent in arrear. The indentures also provided that in case no sufficient distress could be found on the premises, or, if the covenant to pay the rent should be broken, then it should be lawful for the grantor, his heirs and assigns into the whole of. the granted premises, or *165 into any part thereof, in the name of the whole, to re-enter, and the same to have again, repossess and enjoy. These indentures were executed at several periods, in 1790,1792, 1794 and 1796, between Stephen Van Rensselaer, the then proprietor of the lands within the Rensselaerwick patent, and the respective grantees named therein. The plaintiffs are the devisees or assignees of the original grantor, and the defendants the assignees of the original grantees, and in possession of the granted lands, or a part thereof. The question involved is, whether either covenant or ejectment can be maintained against such assignees, by the devisees or assignees of the original 'grantor. It is not controverted that if, under and by virtue of the indentures, the relation of landlord and tenant was created, and is subsisting, the assignee of the land cannot defend himself against the covenant to pay rent, as such covenant would run with and fasten upon the estate or lands, in the hands of the assignee. Neither is it denied, that if the relation of landlord and tenant exists, and the statute remedy by ejectment subsists unimpaired, ejectment may be maintained.

Undoubtedly, in an indenture of this character, conveying lands in fee, the covenants in respect to the payment of rent contained therein, would personally bind the covenantor. A covenant to pay rent, however, is a mere chose in action, and at common law was not assignable. As an exception to the principle, the common law permitted the transfer of covenants, not by the direct operation of an assignment, but as incident to land when passed by assignment; provided they were of that nature, capable of running with land. (Notes to Spencer’s case, Smith’s Lead. Cas, Am. ed. of 1847, 135.) Of course, without this capacity of running with the land, there could be no remedy by action on the covenant, except between the covenantor and covenantee. The capacity only exists when the covenant concerns or affects the land; but it has been held that it is to be regarded as affecting the land though not directly to be performed upon it, provided it tend to increase *166 or diminish its value in the hands of the holder. It is claimed that there is still" another rule applicable to this class of covenants, viz: that “independently of tenure and consequent privity of estate, or, at all events, of such-a relation between the parties, as would agreeably to the feudal law have created tenure and privity of estate, the covenants only run with the land, when and as for the benefit of the land. For the purpose of imposing a charge or burden upon the land, they never run.” If this restriction rests on authority, it would seem to follow, that when the land is conveyed in fee at the time of making the covenant, it will not, when the principles of the English statute quia emptores are in force, run with the land on a subsequent conveyance, as to its charge or burden, as, it has been thought, since that statute, a conveyance in fee creates no tenure or jnivity of estate, and consequently only the benefits of the covenant can be attached to the estate. A covenant to enure to the benefit of a stranger to the estate, would not run with the land as to its charge or burden. So, also, it seems theoretically plausible, that if a grantor conveys his whole estate, reserving nothing of the estate or lands in himself, he cannot charge or burden the land, In the hands of an assignee, even by a covenant in the deed of conveyance ; for having parted with his entire interest, reserving nothing, he is as much a stranger to the land as though he had never owned ■ it, and has no estate to which the covenant can attach. The defendants contend, that whilst the direct object of the English statute of quia emptores terrarum, ( 18 Edw. 1 ,) was to prevent subinfeudations, its indirect and consequential effect was to make a grant in fee a conveyance of the grantor’s entire interest, and as covenants could only pass as incidents to some estate of the party in whose favor they were made, such grantor ■ was left without any estate to which covenants or conditions could be annexed.

It is urged, also, that the indirect consequence of leaving the grantor and covenantee with no estate, was to remove the *167 only foundation upon which covenants and conditions could he imposed;

By the common or feudal law, no grant, whether in fee, or for life or years, created any other relation than that of landlord and tenant. A grant in fee did not pass the right of property, hut only the right of possession. The grantor remained the lord of the soil, notwithstanding the grant. There was tenure or privity of estate between the grantor and grantee, constituted by the one party having the right of property, or, as more commonly called the reversion, and the other the right of possession, subordinate to the reversion or right of property. At the -termination of a lease for life or years, the soil reverted to the lord, and in a grant in fee, or, as it was anciently called, a fee farm grant, there was a possibility of reverter by escheat. One of the incidents of feudal tenure was escheat, or the reversion of the estate on a grant in fee simple, upon a failure of the heirs of the owner. The escheat was originally called the reversion. (Litt. §§ 214 to 217. Butler’s note to Co. Litt. 192 a; 3 Kent, 495, 506; Burgess v. Wheat, 1 W. Black. 133.) Even if no services were reserved on a feoffment in fee, there was still a tenure created, (Litt. § 216. 2 Inst. 275, 511. Co. Litt. 143 a.) The nature of the feoffor’s privity with the estate conveyed, whether in fee, or for life or years, was such as to make any service, charge or rent which he reserved on the conveyance a rent service, for" which, without a clause of distress in the' deed under which it arose, he might distrain of common right. (Litt. § 216. Gilbert on Rents, 12.) To have constituted a rent service, it was enough that a reversionary interest remained in the grantor or lessor; and the right to the escheat in the grantor in all conveyances in fee, with a rent reserved, was sufficient estate in the grantor to constitute privity with the grantee, and to carry the relation of lord and tenant to their respective assignees, and also the covenant or any other covenant concerning the land, along with the land.

The indentures in these cases, or, as they are ordinarily *168 called, manor leases, though grants in fee, would indisputably, at common law, have created the relation of landlord and tenant, and the rent reserved would have been a rent service. If a rent service still, or the relation of landlord and tenant, subsists, or the grantor and his assigns retain any estate or reversionary interest in the lands whatever, sufficient to carry a covenant to pay rent, it is conceded there is no defense to these actions. A still further concession may be made, that unless the British statute of quia emptores was in force in the colony before the revolution, or, since the revolution, a change had been wrought in the common law, by statute, precisely equivalent to that produced by the -English statute, there is no defense. Unless one or the other of these things appear, the common law relation of landlord and tenant subsisted between the original grantor and grantees, and the rent covenant, in the original indentures, j>assed as to its burden to the assignee of the lands.

It has been assumed, heretofore, that the statute quia emptores, enacted in England, in 1290, was never in force in the colony of Mew York. Indeed this is now conceded. The colonial government created manorial tenures. The statute concerning tenures, passed in 1787, recognizes- the existence of these manorial tenures within the state. This statute, therefore, did not and could not affect fee farm grants or leases. The rules of the common law applied to them. They were fee farm estates in land, reserving rent as a consideration for the grant. The rent reserved was a rent service; and the covenant to pay fastened itself upon and ran with the land.

It was a real, as distinguished from a personal covenant, binding the assignee as to its burden. The grantor was entitled to the rent and services incident to tenure in socage, and to the reversion or escheat.. Such was the condition of things up to the organization of the state government. In 1779 a statute was passed transferring the seignory of all lands within the state, and the escheat, to the people, from the 9th July, 1776. In 1787 another law was enacted, entitled “ An act *169 concerning tenures.” The first section of the act was substantially a transcript of the English statute of quia emptores; the second abolished military tenures, and all their incidents, from the 30th August, 1664, and also tenure in socage in capite, with all the fruits and consequences; the third converted all manorial and other tenures into free and common socage; the fourth required all conveyances and devises of any manor lands, &c. theretofore made, to be expounded as if the said manors, lands, &c. had been held from the beginning in free and common socage only; the fifth declared that the act should not be construed to take away or discharge any rents certain, or other services, incident to or belonging to tenure in common socage, due to the person previously entitled to them, or the fealty or distresses incident thereunto. “ These statutes,” says Judge Ruggles, in De Peyster v. Michael, (2 Selden, 467,) “ performed the same functions and wrought the same changes in the feudal tenures of this state, as the statute of quia emptores did in England. They put an end to all feudal tenure between one citizen and another, and substituted in its place a tenure between each landholder and the people, in their sovereign capacity.” Their effect, unquestionably, was to abolish feudal and substitute allodial tenure; but whilst destroying the former system, some of its incidents were preserved. Rents certain, or other services, incident or belonging to tenure in common socage, were excepted from the effect of the statute, and the rights of the grantor of lands in fee, or for life or years, at common law, in this respect preserved, with the feudal incidents of fealty and distress. It was not the intention of the statutes to divest the proprietor of manor lands of property in such lands, but to declare that all lands within the state should be held in free and common socage only, and preserving the feudal incidents of fealty and distress. It is true that their indirect and consequential effect upon a grant in fee of manor lands, reserving rent, was to divest the grantor of the escheat; but it is quite apparent that in respect to lands before held *170 under feudal tenure, even in case of a grant in fee, it was not intended, by any thing in the statutes, to work a change of the technical relation of landlord and tenant. Indeed the act concerning tenures recognizes that relation as existing, and to continue to exist, and, in adopting allodial tenure, provided that nothing contained in the act should be construed to take away or discharge rents certain, or other services incident to the tenure in common socage, due or to grow due to any mesne lord, or other private person, or the fealty or distress incident thereunto. The design was to make the people the chief lords of the fee, and entitled to the escheat of all lands within the state; to strip from the manor grants the characteristics of military tenure, and tenure in socage in capite, with its fruits and consequences; but mot to destroy tenure utterly, and the relation of landlord and tenant. Indeed rent service was an incident of the socage tenure which was preserved. That the effect of the statutes was not supposed to be, in case of a manor grant in fee, reserving rent, to change the legal relation of the parties to such grant, from that of landlord and tenant to that of vendor and vendee, but such grants were regarded, as in England, as fee farm demises, under which a tenancy existed, is apparent from the latter act. ‘ The view is strengthened by subsequent legislative declaration. In 1788 an act was passed to enable grantees of reversions to take advantage of the conditions and covenants to be performed and kept by lessees. It empowered such grantees, as against the lessees, their heirs or assigns, to enter for the nonpayment of rent, and gave them the same remedy, by action against the said lessees or termors, and grantees, their executors, administrators and assigns, as the lessors or grant- . ors themselves ought, should or might have enjoyed. (Laws of New York, Kent & Radcliff, vol. 1, p. 105.) In 1805 another act was passed, extending all the provisions of the last mentioned statute, as well to grants or leases in fee, reserving rents, as to leases for life or years, any law, usage or óustom to the contrary notwithstanding. This act was pre *171 ceded by, and connected with, a preamble as follows: “ Whereas, it hath been doubted whether the provisions contained in an act entitled can act to enable grantees of reversions to take advantage of the condition to be performed by lessees/ hereby intended to be amended, extend to any but assignees of reversions, dependent on estates for life or years; and whereas, leases or grants in fee, Reserving rents, have long since been in use in this state, and to remove all doubts respecting the construction of the aforesaid act, be it enacted,” &c. (4 Webster & Skinner’s Laws, 254.) The English statute ( 32 Hen. 8 , ch. 34) only extended to assignees of the rent and reversion where the lease Was for life or years, the right to take advantage of the covenants in the leases. This act placed grants or leases in fee on the same footing.

The operation of the statute, as amended, upon the grants ■ now in question, was to continue the relation of landlord and tenant between Stephen Yan Rensselaer and his grantees in fee, where rent was reserved, with a condition of entry for non-payment of rent, and to make the grantor’s or lessor’s interest in such a grant or lease, an entity assignable, with its remedies, as against the assignees of the grantee or lessee, to be enforced by entry for non-payment of rent, or other forfeiture. The grants in fee were put on the same footing as indentures of lease for life or years, and the like character of assignability attached to them.

They were called leases or grants in fee, and the grantees treated, not as the absolute owners of the land in fee simple, owing no service or duty to any one, but as lessees and tenants of land charged with the covenant to pay an annual rent, and with the further condition imposed, of entry for' the non-payment of such rent. The indirect consequences of the statutes concerning tenures and escheats, may have been to take from the grantor in fee the escheat, or possibility of reverter, which created privity of estate'at common law; but it seems to me that, whilst taking from him the escheat, the. legislature intended, and were successful, in continuing privity *172 of estate, as much between grantor and grantee in fee of' manor lands, reserving rents as in leases ’for life or years. There never was any doubt of the existence of this privity in the case of a grantor or lessor for life or years. He was the owner of the reversion. By the act of 1788 the grantee or assignee of the reversion, his heirs and assigns, were enabled to have and enjoy like advantages by entry for non-payment of rent, and action for non-performance of conditions, covenants and agreements contained and expressed in their leases, demises or grants, against the lessees and grantees, and their assigns, as the lessors and grantors themselves, or their heirs or successors, might have had or enjoyed at any time, in like manner and form as if the reversion of such lands had remained or continued in the same lessors or grantors. In 1805 it was doubted whether these provisions extended to any but assignees of reversions dependent on estates for life or years, and as leases or grants in fee, reserving rents, had long been in use in the state, to remove all doubts, the legislature applied the provisions and remedies, as well to grants or leases in fee, reserving rents, as to leases for life or years. Here was a legislative recognition of grants in fee, reserving rents, as valid and subsisting in the hands of the assignees of both parties to them; while the provisions of a statute enabling grantees of reversions to hold rights, and enforce certain remedies, by reason of being assignees of reversions, were applied. The effect would seem to have been to make the grantors’ or lessors’ interest in the grant, pro liac vice, equivalent to a reversion. The people of the state having taken the escheat of all lands to themselves, and thereby removed the common law foundation, on which privity of estate between grantor and grantee in fee of manor lands rested, by operation of subsequent statutes that privity was continued. These statutes were, in substance, re-enacted in 1813, and again in the revised" statutes. Indeed upon the revision of the statutes, in 1830, the “ Act concerning tenures ” was repealed, (3 R. S. 129,) at the suggestion of the revisers, and *173 with the view of subjecting all lands to the repts and services which had before obtained amongst the citizens of the state, and the rights annexed thereto by the common law, whilst abolishing feudal tenures, with their incidents, it was enacted that such abolition should not take away or discharge any rents or services certain, which, at any time before, had been, or thereafter might be, created or reserved. (Revisers’ Re ports, part 2, ch. 1. 1 R. S. 718, § 4.) The relation of landlord and tenant was preserved, as well in respect to grants or leases in fee, reserving rents, as to leases for life or years. Such grant was treated as a demise of the premises holden. It was styled indiscriminately a grant or lease; and like characteristics of assignability given to it. (1 R. S. 747, §§ 23, 24, 25.) This relation of landlord and tenant between the parties to a grant in fee, reserving rent, would, agreeably to the feudal law, have created tenure and privity of estate; and as the relation has been carefully guarded and preserved by statute, in respect to grantor and grantee in such conveyances, and their respective assignees, I cannot see how they are to be treated and considered only as vendor and vendee of the lands, between whom, confessedly, there would be no privity, or any interest or estate left in the grantor, whereby conditions might be imposed, or the burden of covenants attached to the land. If privity of estate be the result of tenure, and to constitute such privity the position of the parties must be such as would formerly have given rise to the relations of tenure, it seems to me that this has been effected by statute. If a tenure (according to the feudal meaning) be necessary to constitute the relation of landlord and tenant, lands held under grants or leases in fee, with reservations of rent, have been, by statute, expressly subjected to the incidents of socage tenure, viz: rents and services; and those incidents at common law carried with them the technical relation, whether the rent reserved in a grant in fee would, at common law, be a rent service or a rent charge. The provisions of the statute alluded to, assimilate a rent reserved *174 upon a conveyance in fee to one accompanied by a reversion, and apply the relations and incidents of an indenture of the latter description to one of the former.

At common law a covenant ran with the land, and carried with it a consequent right of suit, where there was an accompanying conveyance of the land to the covenantor. The performance of the covenant was regarded as part consideration for the conveyance, without which it would not have been made. The statute of quia emptores destroyed tenure as between feoffor in fee and feoffee, changing rents service into rents charge, and as it is claimed, constituting the grantor in fee in effect a vendor of land instead of the landlord, and the grantee a vendee instead of a tenant. That statute never had any existence here. Our statutes put an end to the feudal system and technical feudal tenure, and substituted tenure between each landholder and the state. Yet some of the incidents of feudal tenure were preserved. The abolition of feudal tenures was not to be construed so as to take away or discharge rents certain or other services incident or belonging to tenure in common socage, or the fealty or distresses incident thereunto. The relation of landlord and tenant was to continue to exist. With respect to leases for life or years, it has never been doubted as existing, notwithstanding the entire system of feuds, if it ever practically existed in the colony, has long since been abolished in the state. Tenure, within feudal meaning, has long been unknown, yet the feudal relation as regarded lessors and lessees for life or years, is conceded to have always existed. Bents certain and other services incident or belonging to tenure in common socage, had, prior to the act of 1787, been legally reserved in leases or grants in fee, as in those for life or years, and they with the feudal remedies were not taken away and discharged more in the former than in the latter case. It is true that by giving the escheat of all lands in the state to the people, what, in feudal meaning, was known as the reversion of a grantor in fee reserving rents was taken away; but still in regard to such grants under the operation of our *175 statutes the effect was not to dissolve the relation of landlord and tenant, so as to make such‘a grant, what it was never intended to he hy the parties, an unconditional parting hy the grantor with his entire estate or interest in the lands, so that in the hands of an assignee there would he nothing left to which a covenant or condition could attach. Kents and services, incidents of socage tenure, reserved in grants in fee, and fealty and distress, incidents of feudal tenure, and the conditions of entry for non-payment of rent, were to he unaffected, hy transferring the escheat from the grantor of the fee to the state. That the relation of landlord and tenant was regarded as subsisting, as well in case of grants in fee, reserving rents, as in leases for life or years, is manifest from early legislative action. The former were placed on the same footing with the latter. They were declared to be valid subsisting leases in the hands of the assignee of both grantor and grantee, and the like rights, relations and remedies attached to them. ' If this was not wholly done by legislation prior to 1830, it was then finally accomplished. The very grants in these cases were legalized as leases; and in the entire abolition- of feudal tenures, it was enacted that such abolition should not take away or discharge any rents or services certain, which at any time before had been or might thereafter be created or reserved. (1 R. S. 718, § 4; id. 747, §§ 23, 24, 25.) If rents or services certain, before created or reserved, were not to be taken away or discharged, by a radical change in the tenure by which property was held, it would seem to follow that the same rights, relations, and remedies by action or otherwise, were necessarily retained.

The covenants to pay rent in the cases we are considering run with the land, as to their burden, and may be enforced as against the respective assignees. If by force of our statutes privity of contract was not transferred as between the assignees of the grantor and grantee, in the indentures, there is privity of estate. Under our laws the relation of landlord and tenant is made to exist as between the grantor and grantee in *176 a conveyance in fee, of manor lands, reserving rents. A statute privity -is created, enough to pass a covenant to pay rent to each subsequent assignee of the land conveyed.

The revised statutes authorized an action of ejectment, to recover the possession of demised premises, whenever any half year’s rent or more should be in arrear from any tenant to his landlord, and no sufficient distress could be found on the premises to satisfy the rent due, provided the landlord had a subsisting right by law to re-enter for the non-payment of such rent; and the service of such a declaration in such action was to be deemed and stand instead of a demand of the rent in arrear and of a re-entry on the demised premises. (2 R. S. 505, § 30.) This statute only applied to cases where the conventional relation of landlord and tenant existed. That relation has always been assumed by the courts to exist, under and by virtue of the manor grants in fee reserving rents; and I have endeavored to satisfy myself that that assumption was well founded. In 1846 the legislature abolished the remedy by distress for rent, rendering it impossible that there could be any “sufficient distress” on or off the premises. The landlord was deprived of the power to distrain, and the tenant of his power to comply with his agreement to keep “sufficient distress” on the premises to satisfy rent in arrear. But whilst abolishing distress as a remedy, the legislature declared that “whenever the right of re-entry is reserved or 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.” I do not think the effect of this statute was to repeal the article of the revised statutes, entitled “of the recovery of the pos *177 session of demised premises for non-payment of rent.” The effect rather was to render inoperative the words in § 30, “and no sufficient distress can he found on the premises,” &c. As the law stood prior to 1846, the landlord, for condition-broken, might have proceeded at common law, or under the statute, to re-enter and repossess himself of the premises. The tenant covenanted to pay the rent, and further stipulated that if he broke the covenant the grantor might re-enter. He also agreed that a sufficient distress should always be found on the premises to satisfy any rent in arrear. The legislature, in 1846, abolished the remedy by distress for rent; thus practically rendering it unimportant whether sufficient distress could be found on the premises or not. Whilst taking away one of the remedies of the grantor in a case where a right of re-entry was reserved, another was substituted. Before, the grantor might re-enter in case of a failure of the tenant to keep a sufficient distress on the premises to satisfy arrears of rent; but by the statute of 1846 he was authorized to re-enter at any time after default made in the payment of such rent, provided he gave notice in writing to the grantee or lessee, his heirs, executors, administrators or assigns, fifteen days previously, of such intention to re-enter, notwithstanding there might be a sufficiency of goods and chattels on the lands granted or demised, for the satisfaction of rent due. In Van Rensselaer v. Snyder, (3 Kern. 299,) it was held that this was a new remedy provided for the landlord to enforce the collection of the debt due to him, in lieu of that by distress. Whether this be so or not, there is nothing in the act of 1846 expressly repealing the prior statute giving an action of ejectment for the non-payment of rent; nor do the provisions of the former repeal the latter by implication. The case cited was ejectment brought under the statute, after the law of 1846 was enacted, for the non-payment of rent accruing upon an indenture similar, in all respects, with those under consideration. The idea was not intimated, by court or counsel, that the statute remedy had been affected; but it was held that *178 the law of 1846 was valid, the notice of intention to re-enter (like those in the present cases) sufficient, and the plaintiff (the devisee of the grantor in the indenture) entitled to recover.

[Albany General Term, May 3, 1858.

W. B. Wright, Harris and Gould, Justices.]

The judgments of the circuit court in the cases of Van Rensselaer v. Ball, and Van Rensselaer v. Hays, should be affirmed. The judgments of the'special term in the cases of Van Rensselaer v. Smith, and Christie et al. assignees, &c. v. De Friest, should also be affirmed.

Harris, J., concurred.

Judgment accordingly.

Applying to these provisions the principles, (as to retroaction.) in the note on the statute of 1805, (post, p 154,) all these leases are excepted out of the statute concerning tenures; and this conclusion (in the text) becomes unavoidable.

The case in Carthew is this: A. made a lease for lives to B., reserving a yearly rent to A. and his heirs. A. then devised the reversion to C. and died. C. held the reversion two years, and then granted over the reversion to D. After having so granted over, C. sued B. in covenant, for the two years’ rent which accrued while he (0.) held the reversion. It was urged in bar, that 0. not holding the reversion at the time of suit could not maintain the action. But the court held the action well lay; Lord Holt saying that (by the statute, 32 Henry 8) “ the very privity of contract” was transferred by and with the devise of the reversion, (i. e. privity of contract as distinguished and distinct from the privity of estate.) So that, by that statute, a chose in action as separable from the reversion, was in substance assigned; and not only was it separable, but by a grant over of the reversion merely, (after rent accrued,) the statute itself worked a separation, and the assigned contract, (assigned by the devise with the reversion,) the “privity of contract,” on which to sue, remained in the grantor of the reversion to enforce the collection of rent accrued to him, unless expressly transferred with his grant over; and he could sue on that privity of contract, after his privity of estate was gone.

There are some points, which were embraced in my original memoranda for the written opinion, that were omitted in the final writing of that opinion, because not deemed absolutely essential to the decision, and because the length of the opinion, without them, exceeded the limits within which I had intended to confine myself. But as, from frequent questions that have been put to me by members of the profession, I find those points are considered to be of greater importance than I had deemed them, I append this note to the opinion submitted to the court, as giving the views I originally held, as above stated.

Is the statute of 1805 (as regards leases made between 1787 and 1805) void, as being in contravention of that provision of the United States constitution which forbids a state legislature to pass any “ ex post facto law, or any law impairing the obligation oí contracts'?” An ex post facia law is a criminal, or penal statute, not a civil or remedial one, by all authorities, from Blackstone’s time to ours. (1 Bl. Com. 46. 3 Dallas, 386 , 394. 2 Wash. C. C. R. 366. 2 Gallic. C. C. Rep. 138.) And giving, to the lawful holdef of the rights and interest in a covenant, the legal power to enforce it; enlarging the remedy on a contract and its conditions, by giving the remedy to and against an as* *155 signee of either party to the contract, is an unusual way of impairing the obligation of the covenant or condition.

It is probable that the point intended to he made is, that the law of 1805 is void, because it imposes a burden upon a vested estate in fee simple absolute ; and is thus a retroactive statute, in derogation of the vested rights of the grantee in the lease, or his assigns. This view, while probably meriting attention, admits of what I deem a complete answer. For never, in any legal decision, was it held that, as between lessor and lessee of a lease in fee, reserving rent, the lessee took a fee simple absolute. He, and the latid in his hands, and in the hands of his heirs, were bound by the reservation and condition, as a duty upon the land. Littleton says that “ by force of the writing the land is charged with the distress," (and re-entry.)

Who, then, took this fee simple absolute, in the land freed of the charge, in the cases before the court 1 The lessor (Stephen Van Rensselaer) lived until 1839 ; so his assignment (being by devise, and under the revised statutes) was valid, to give his right of action to his assignee. Nor does it appear that in either of these cases the lessee assigned or transferred the title to the land, prior to 1805. In the Ball case it appears in proof that the original lessee held the land until within twenty-five years, bringing it down to a time after 1830. And in each of the other cases the arrears, for which the suit is brought, accrued within a period of less than twenty years ; thus, by implication, showing the actual payment of these identical rents, down nearly to 1840.

Now, even if either of these lessees had granted over the land prior to 1805, the payment, by the lessee’s grantee or assignee, of the rent, after 1805, or at any time after he took his assignment or deed, is an acknowledgment that he took the land, not in fee simple absolute, but subject to the rent, and under his contract to pay the rent. And, by estoppel, he, and the land, would be bound by the privity of contract (so acknowledged) whereby, “ by force of the writing, the land is charged with the distress and re-entry.” There is probably no one instance in the state, where the rent, reserved by any lease in fee, has not been paid by the terre-tenant, long after 1805. And, as matter of fact, it is quite notorious, that until long after 1830 the grants or assignments by the lessees were always expressed to be subject to the rents, &e. of the original lease in fee; referring thereto for covenants and conditions to be kept by the assignee.

But were this not so: Is the act of 1805 void for interfering with vested rights, by retroaction 1 It is not so by the constitution of the United States, ( 3 Dallas, 386 , 394,) that constitution not touching the supreme authority— *156 the actual sovereignty—of a state legislature, any further than its express provisions go. Is there any restriction on the state sovereignty, in the hands of its representatives, whereby such legislation is made void 7 It was not so held in the case of Calder v. Bull, ( 3 Dallas, 386 .) Nor did any English case, that I find, ever hold that an assignee of a lessee by assignment, prior to 32 Hen. 8 , was not, by that statute made liable to the action for rent, &c., although his release from the obligation (by reason of the non-assignability of the right thereto) was as absolute as can be any estate here claimed to have become vested,under the statute of 1787.

Retroactive remedial statutes are not of very rare occurrence. And where they, by retroaction, plainly and expressly affect prior rights, and make new 'remedies,, courts find themselves hound to enforce them. In 1 Hill, 334 , it is held that an “ express provision was allowed to have such an operation,” (citing two adjudged cases.) And again, in 2 Hill, 239 : ‘‘ it is a general rule that a statute affecting rights and liabilities should not he so construed as to act upon those already existing. To give it that effect, the statute should i/n terms declare an intention so to act.” And, in 11 Paige, 403 , “ courts of justice will apply new statutes only to future cases which may arise; unless there is something in the nature of the new provisions adopted by the legislature, or i/n the language of such new statutes, which shows that they were intended to have a retrospective operation." Taking these cases to be sound law, there is little room for debate; for there can hardly be framed any more direct and express declaration of intent—any more express provision—to give a retroactive effect, (that is, an effect on all then existing leases in fee reserving rent, and on the then existing assignments thereof,) than those of the act of 1805. “ Whereas leases in fee reserving rents have long since been" in use in this state,” and “ the remedies thereby given shall be construed to extend to leases in fee reserving rents, any lam, usage or custom to the contrary thereof notwithstanding."

Nor is it, in reality, any attack upon a vested right. It is merely preventing á construction of the statute of 1787, (and that a construction not of the direct purpose of the act,) from giving to the lessee an estate different from the one he agreed to take, and from thus enabling him to commit a gross wrong, in palpable evasion of his own sealed covenant. It is, by extending the assignability of a chose in action, (as our code has since done on a much more extended scale,)—merely compelling the land, and its owner, to fulfill the contract of purchase, and to pay the interest of the.purchase price, of that for which no principal was ever paid.