We are, then, to ascertain the effect of a conveyance in fee reserving rent, upon the assumption that the statute of quia emptores applies to such transactions. In the first place, no reversion, in the sense of the law of tenures, is created in favor of the grantor; and as the right to distrain is incident to the reversion, and without one it cannot exist of common right, the relation created by this conveyance did not itself authorize a distress. The fiction of fealty did not exist. The rent in terms reserved was not a rent-service. Litt., secs. 214, 215. It was, however, a valid rent-charge. According to the language of Littleton, " if a man, by deed indented at this day, maketh a feoffment in fee, and by the same indenture reserveth to him and to his heirs a certain rent, and that if the rent be behind it shall be lawful for him and his heirs to distrain, etc., such a rent is a rent-charge, because such lands or tenements are charged with such distress by force of the writing only, and not of common right." Id., secs. 217, 218. And the law is the same where the conveyance is by deed of bargain and sale under the statute of uses. Co. Litt. 143 b. Mr.Hargrave, in his note to this part of the commentaries, expresses the opinion that a proper fee farm rent cannot be reserved upon a conveyance in fee, since the statute of quia emptores; but he concedes that where a conveyance in fee contains a power to distrain and to re-enter, the rent would be good as a rent-charge. Note 235 to Co. Litt. 143 b. Blackstone says that upon such a conveyance the land is liable to distress, not of common right, but by virtue of the clause in the deed. 2 Bl. Com.. 42. * * *
These authorities establish the position that upon the conveyance under consideration a valid rent was reserved, available to the grantor by means of the clause of distress. This rent, though not strictly an estate in the land, Payne v. Beat, 4 Denio, 405, is nevertheless a hereditament, and in the absence of a valid alienation by the person in whose favor it is reserved, it descends to his heirs. Its nature, in respect to the law of descents, is explained by Lord Coke, who at the same time points out the distinction between such a rent as we are considering and a rent-service reserved upon a feoffment which created a tenure. He says that if a man seized of a manor, as heir on the part of his mother, before the statute of quia emptores, had made a feoffment in fee of parcel, to hold of him by rent and service, albeit they (the services) are newly created, yet for that they are parcel of the manor, they shall, with the rest of the manor, descend to the heir on the part of the mother. If a man so seized, that is by inheritance from his mother, maketh [now] a feoffment in fee, reserving a rent to him and his heirs, this rent shall go to the heirs on the part of the father. Co. Litt. 12, b. The reason is given in a case in Hobart, thus: "If, upon a feoffment of lands which I have on the part of the mother, or in Borough English (where the youngest son is the heir) I reserve a rent to me and to my heirs, it shall go to my heirs at common law, for it is not within the custom, but it is a new thing divided front the land itself." Counden v. Clerk, 31, b. The distinction is this: A rent-service, such as arose upon an alienation of a fee at common law, was incident to the reversion, and, therefore, a part of the estate remaining in the feoffor; and upon his death it passed in the same channel of descent as the estate would have done if there had been no alienation. But where there is no reversion, as in the case of a conveyance in fee since the statute, the rent reserved is an inheritable estate newly created, and descends according to the general law of inheritance, to the heirs of the person dying seized, without regard to the heritable quality of the estate, the conveyance of which formed the consideration of the rent. Preston states the principle thus: "A rent incident to the reversion will descend with the reversion as a part thereof; but a rent reserved on a grant in fee, or limited by way of use in a conveyance to uses, will be descendible as a new purchase from the person to whom it is reserved or limited." 3 Essay on Abstracts of Title, 54. Further on he says that in such cases "the instruments amount to, first, a grant of the land from the owner of the same; and, secondly, a grant of the rent on the part of the grantee." Id. 55. To the same purpose see 3 Cruise, 313 (N. Y. ed. of 1834). The descendible quality of these rents was early established in this State in the case of The Executors of Van Rensselaer v. The Executors of Platner, decided in the year 1800. * * *
But the plaintiff in this case sues as devisee of the grantor and must establish the position that he is entitled in that character to sue upon the covenant. * * * In England, it is perhaps a debatable question at this day, whether the assignee of the grantor can maintain the action. [Some English cases are considered at this point.] [Sir Edward Sugden] says the rent-charge is an incorporeal hereditament, and issues out of the land and the land is bound by it. The covenant, therefore, he adds, may well run with the rent in the hands of an assignee; the nature of the subject, which savors of the realty, altogether distinguishes the case from a matter merely personal. [After considering certain New York cases and statutes it is decided that the devisee of Van Rensselaer can sue, upon the covenant, any one upon whom the covenant is binding, and that it is binding upon the defendant.]
1 Wharton (Pa.), 336. - 1836.
Replevin by Ingersoll against Mrs. Sergeant to recover chattels distrained for rent. Defendant avowed for rent in arrear and a verdict was found in her favor, subject to the opinion of this court.
Plaintiff insists that the release of a portion of the premises from the burden of the rent extinguished the whole rent.