Kennedy, J. - The plaintiff alleges that the rent in question is in its nature strictly a rent-charge, and that the defendant, therefore, by releasing to Jonathan Smith a part of the ground upon which, according to his own phrase, it was charged, released the whole rent. It becomes material, therefore, to inquire and see whether it be a rent-charge or not; and if not, whether it is not a rent-service; because if it be a rent-service, the defense set up against the payment of it cannot avail, at most, beyond what shall be considered a proportional part, according to the value of the land released.
According to Littleton, there are three sorts of rent, which he specifies in section 213; namely, rent-service, rent-charge, and rent-seek. "A rent-service," he says, "is where the tenant holdeth his land of his lord by fealty and certain rent, or by homage, fealty and certain rent, or by other services and certain rent. And if rent-service at any day, that ought to be paid, be behind, the lord may distrain for that of common right." And in section 218, he also shows how a rent-charge and a rent-seek were created before the passage of the statute quia emptores terrarum, (18th Edw. 1, stat. 1, c. 1). He there says, "if a man seized of certain land, grant by deed poll, or his indenture, a yearly rent,to be issuing out of the same land to another in fee, or fee tail, or for term of life, etc., with a clause of distress, etc., then this is a rent-charge; and if the grant be without clause of distress, then it is a rent-seek; and idem est quod redditus siccus, for that no distress is incident unto it." And in the 217th section, he lays it down that "if a man by deed indented at this day (which was after the statute quia emptores had come into operation,) maketh a gift in fee tail, the remainder over in fee, or a lease for life, the remainder over in fee, or a feoffment in fee; and by the same indenture, he 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." But before the passage of the statute quia emptores, it was clearly otherwise; for in the 216th section, he says, "before that statute, if a man had made a feoffment in fee simple by deed or without deed, yielding to him and to his heirs a certain rent, this was a rent-service, and for this he might have distrained of common light; and if there were no reservation of any rent, nor of any service, yet the feoffee held of the feoffor by the same service as the feoffer did hold over of his lord next paramount." Hence it is evident that the ground rent in question cannot be considered a rent-charge, unless it be so by the force of the statute quia emptores; but if it shall appear, upon examination, that this statute is not and never has been in force in Pennsylvania, then it would seem to be equally evident, that it must be held to be a rent-service. King Charles the 2d, in granting the province of Pennsylvania to William Penn and his heirs, gave it to be held in free and common socage and by fealty only, for all services; (see section 3 of the charter.) And by the 17th section thereof, William Penn, his heirs and assigns, had full and absolute power given to them, at all times thereafter, and forever, to assign, alien, grant, demise or enfeoff such parts and parcels thereof, to such persons as might be willing to purchase the same, their heirs and assigns, in fee simple, fee tail, for term of life, lives, or years to be held of the said William Penn, his heirs and assigns, as of the seigniory of Windsor by such services, customs and rents as should seem fit, to the said William Penn, his heirs and assigns, and not immediately of the said King Charles, his heirs or successors. And again by the 18th section, it was further provided, that the purchasers from William Penn, his heirs or assigns, should hold such estates as might be granted to them, either in fee simple, fee tail, or otherwise, as to the said William Penn, his heirs or assigns should seem expedient, the statute of quia emptores terrarum in anywise notwithstanding. From these provisions, it appears most clearly, that it was the intention of King Charles to grant the lands of the province to William Penn, his heirs and assigns, so as to enable them to hold and dispose of the same as if the statute quia emptores had not been in existence. That it has been ever so understood may be seen and fairly inferred from both our legislative and judicial proceedings. * * * Then an act of the assembly for ascertaining the descent of lands, and better disposition of the estates of persons dying intestate was passed; [app. to Hall & Sellers, vol. Pro. L. p. 4]. This act, after making all the lands as well as the personal estate of the intestate, liable to be seized and sold by his administrators for the payment of his debts, directed, by the second section thereof, that in case he should leave no known kindred, then all his, lands, tenements and hereditaments should descend and go to the immediate landlord, of whom such lands were held, his heirs and assigns; and if held immediately of the proprietary, then to the proprietary, his heirs and assigns; and all goods, chattels, and personal estate to the proprietary and governor, his heirs and assigns Now, here we have the right of escheat established upon and regulated according to the right of subinfeudation, and the principle of tenure, between the last feoffee or terre-tenant and his immediate feoffor or vendor. The same provision in regard to the right of escheat was introduced into a new intestate law passed in 1705 (Hall & Sellers, vol. Pro. L. 35), which continued in force till after the Revolution. This regulation of the right of escheat was in direct contravention to the statute quia emptores; which was enacted expressly for the purpose of securing it to the lord paramount, instead of the immediate landlord or feoffor or vendor, in every case of the terre-tenant's dying without heirs; together with the right of marriage and of wardship, which were also claimed as the fruits of the feudal system. The two last of these rights, however, were taken away by 12 Car. 2, c. 34, some six years before the granting of the province to William Penn; so that the door seems to have been completely closed from the first in the province, against the introduction of the only remaining right that existed under the authority of the statute quia emptores terrarum. As to judicial evidence of the non-existence of this statute here, I refer first to the case of Dunbar, Heir of Dunbar v. Jumper, Assignee of Thompson, 2 Yeates, 74, where upon a mutual deed executed by the vendor and the vendee, by which the vendor sold and conveyed an acre of land to the vendee in fee, it being necessary for a grist-mill of the vendee, in consideration of the vendee's yielding and paying to the vendor and the lawful heir of his body, the privilege of grinding such grain as might be used or consumed by the vendor in his private family, on the plantation which he then occupied, or the heir of his body, on the said plantation after his decease, free of toll, as long as the mill should be in order to grind, it was held by Shippen and Yeates, Justices, at Nisi Prius, at Carlisle, in 1796, that an action of covenant was maintainable by the heirs-at-law of the vendor against Jumper, the assignee of Thompson, the vendee, for refusing to grind grain toll free for the plaintiff, according to the terms of the deed. Now, under the statute quia emptores, if it had been in force here when this case was decided, and our lands, considered as held under feudal tenures, the grinding of the grain ought to have been regarded as a rent-charge, and perhaps more properly so, than a ground-rent reserved on a deed poll. But a covenant to pay a rent-charge is merely personal and collateral to the land, and therefore will not render the assignee liable to an action of covenant for the non-performance of it. Brewster v. Kitchen, Kitchell or Kidgell, 1 Ld. Raymond, 322, s. c, Holt, 175; 5 Mod. 374; 1 Salk. 198; 12 Mod. 170-1; Cook v. Earl of Arundel, Hardr. 87; Platt on Co. 65, 475. Hence, we may very fairly conclude, that the court in Dunbar and Jumper did not consider the statute of quia emptores in force here, otherwise they would not have held, as they did, that the covenant of the vendee to grind toll free ran with the land, and that the assignee or terre-tenant thereof became liable to an action of covenant for not fulfilling it * * *