1 Feudal tenures under the old crown grants continued in New York until the R. S of 1830. Grants under the State government were allodial from the first. In [830 all holdings of land in New York were made allodial. See l R. S. 718, §§ 1 and 3. See also const, of 1894, art. I, §§ 11 and 12. - Ed.
This statute then being out of the way, we have seen that, according to the principles of the common law (Littleton, sec. 216), the rent in question is clearly a rent-service. And Lord Coke, in his commentary upon this section (Co. Litt. 143 a), adds "at the common law, if a man had made a feoffment in fee by parol, he might upon that feoffment have reserved a rent to him and his heirs, because it was a rent-service and a tenure thereby created." It was called a rent-service, because it was a compensation for the services to which the land was originally liable; 3 Cruise, Dig. Rents, tit. 28, c. 1, sec. 6. And at this day, the tenant (says Chief Baron Gilbert), does the corporeal service of fealty; Gilb. on Rents, 9; and therefore it is still called a rent-service, because it hath always some corporeal service incident to it, which at the least is fealty. Gilb. on Distress, 5; 1 Inst. 142 a.
The rent in question then being a rent-service and not a rent-charge, the doctrine contended for, as well as the authorities cited by the plaintiff's counsel on the argument, showing what in law will amount to an extinguishment of the whole rent, where it is a rent charge, and that it is not in its nature apportionable by the act of the parties, will be found to be wholly inapplicable to a rent-service. A rent-charge was considered repugnant to the principles of the feudal policy, inasmuch as it created an incumbrance upon the land of the tenant, and rendered him the less able to perform the services incident to his tenure; and being looked on as against common right, the law did not attach the remedy by distress for its recovery when in arrear, so that it is only given by virtue of the clause to that effect in the deed creating it. Gilb. on Rents, 155; Littleton, sec. 217; 3 Cruise, Dig. tit. 28, Rents, ch. 1 sec. 9. In short it was regarded with disfavor by the law, and any act, therefore, on the part of the owner of it, which could in any way be construed to be incompatible with the future assertion of right to the same, was held to amount to a release or an extinguishment of it, without regard to the intention; as, for instance, if he purchased or released a part of the land from the rent, upon which it was charged; this was held to be an entire extinguishment of his right to the whole rent; Littleton, sec. 222; 1 Inst. 147 b; Gilb. on Rents, 152; 18 Vin. Abr. 504; Bro. tit. Apportionment, pl. 17; 3 Cruise Dig. tit. 28, Rents, ch. 3, secs. 13, 16. But a rent-service being given as a compensation for the services to which the land was originally liable under the feudal system (3 Cruise Dig. tit. 28, ch. 1, sec. 6), must, therefore, be judged of by the rules which regulated the performance of those services. Accordingly, Littleton lays it down expressly in section 222, " if a man which hath a rent-service, purchase parcel of the land out of which the rent is issuing, this shall not extinguish all, but for parcel; for a rent-service in such case may be apportioned according to the value of the land." If the rent, however, in such case should be indivisible, as if it consist of a horse, hawk, etc., it would be taken away; Bruerton's Case, 6 Co. 1 b; Co. Litt. 149 a; 8 Co. 155 a; Mo. 203; Gilb. on Rents, 151, 165. So if the lord purchase a part of the tenancy in fee, a proportional part only of the rent becomes extinct, and the residue will continue in esse, because of the enjoyment of the remaining part of the land by the tenant, which is the consideration for the payment of the rent. Ascough's Case, 9 Co. 135; Co. Litt. 148 b. Lord Hale, Chief Justice, in Hodgkins v. Robson, 1 Ventr. 276, may possibly be thought to go still further, when he lays it down that if a lessee assign part of the land which he holds on lease, to a stranger without reserving any rent, and the stranger assigns it to the lessor, there shall be no apportionment or suspension of any part of the rent, because the tenant, by assigning part, made himself answerable for the whole rent; and the lessor claiming under a stranger, is entitled to the benefit of his contract. This proposition is also repeated with seeming approbation, by Lord Chief Justice Baron Gilbert, in his treatise on Rents, 181. The reason of the difference mentioned between rent-charge and rent-service is stated by Lord Chief Baron Gilbert to be this: In case of rent-service, the tenant is under obligation of the oath of fealty, to bear faith to his lord, and to perform the services for the land which he holds of him; and this obligation has its force, while the tenure of the lord continues, and the tenure could not be discharged by purchase of part of the tenancy; for that construction would not only be attended with this absurdity, that the part remaining in the tenant's hands would be held of nobody, and in consequence would produce this public inconvenience, that the remainder of the tenancy would be free of all feudal duties; which in the height of the feudal tenures must have been a detriment to the public; wherefore, since for this reason, the tenure between the lord and the tenant, continued for so much of the land as remained unpurchased, the tenant, by his oath of fealty, was obliged to perform the services of it. But as it would have been unreasonable to have compelled him to perform the whole services that were reserved upon the old donation, when the lord had wilfully resumed part of the land, which was the consideration upon which the obligation to make the annual return of services was founded, the medium between the two extremes was adopted; that as the enjoyment of the land was the consideration for the services, the return ought always to be made according to the proportion of the land, which the tenant continued in the possession and enjoyment of. But in the case of a rent-charge, when the grantee purchases parcel of the land, the whole rent is extinguished, because there is no feudel dependency between the grantor and the grantee by the deed of grant, which created the rent-charge, as there was by the feudal donation which created the rent-service. And, therefore, as these grants were of no benefit to the public, and afforded no addition of strength or protection to the kingdom, the law carries them into execution only so far as the rent could take effect, according to the original intention of it; and, therefore, if the grantee had wilfully, by his own act prevented the operation of the grant according to the original intention of it, the whole grant was to determine. And as a rent-charge issues out of every part of the land, and consequently every part of the land is subject to a distress for the whole rent, therefore, when the grantee purchases part of the land, it is become impossible by his own act, that the grant should operate in that manner, because it is absurd that the grantee should distrain his own lands, or bring an assize against himself. Gilbert on Rents, 152-3-4, 3 Cruise Dig. tit. 28, Rents, ch. 3, sec. 14. But rent-service being something given by way of retribution, to the landlord for the land demised by him to the tenant, and the obligation of the latter to pay the rent arising from his having enjoyed the land under a contract with his landlord, it is reasonable that the extent of his obligation to pay should be regulated by the extent of his enjoyment; and, therefore, it is that if he be legally deprived of the enjoyment of part of the land demised, he shall be released from the rent only in proportion to the value of the land evicted. And in no case will an eviction of part of the demised premises, where the tenant continues to enjoy the residue thereof, discharge him from the payment of the whole rent, unless it be by the tortious act of the landlord himself, who shall forfeit all right to receive it in such case, as long as he prevents the tenant against his will, from occupying and enjoying any part of the land. Gilb. on Rents, 147 ; 10 Co. 128 a; 1 Roll. Abr. 235 ; Dyer, 56; Co. Litt. 148 b; 1 Ventr. 277; Gilb. on Rents, 178-9. * * * I have now presented my views in regard to the questions involved in this case; and the reasons which have determined me in coming to the decision adopted by the court, to wit, that the release is only an extinguishment of so much of the rent as may be equal to the comparative value of the ground bought by Mr. Smith of the plaintiff, at the time of the sale thereof; and the defendant is entitled to recover the residue of the rent due at the time of the distress. This apportionment, however, can only be made by a jury; Hodgkins v. Robson, 1 Ventr. 276, s. c. Pollex, 141; Fish v. Campion, 1 Roll. Abr. 237; and as the verdict found by the jury does not provide for it, the matter will have to be submitted to another jury, unless the parties will agree to take the price mentioned in the deed from Mr. Reed to Mr. Ingersoll, as the value of the whole of ground subject to the ground-rent, at the time the release was given, and the price mentioned in the deed from Mr. Ingersoll to Mr. Smith, as the value of the part released from the rent. If this be agreed to, the whole case can be settled now; otherwise the verdict must be set aside and a
Venire de novo awarded.1