19 New York, 68. - 1859.
Action to recover rent in arrear. Plaintiff is a devisee of Stephen Van Rensselaer, deceased. Further facts appear in opinion.
Denio, J. - The defendant's position is, that the covenant for the payment of the rent is, in law, personal between the grantor and grantee, or what is sometimes called in the books a covenant in gross, and, consequently, that after the death of the original parties no action to recover rent can be maintained in favor of or against any persons except their respective executors or administrators. As the law contemplates that the estates of deceased persons shall be speedily settled, and in the natural course of things the personal representatives of a man disappear with the generation to which they belong, the intention of the parties to the indenture to create a perpetual rent issuing out of the premises will, if that position can be maintained, be entirely disappointed; and the argument is, in effect, that the law does not permit arrangements by which a rent shall be reserved upon a conveyance in fee, and that where it is attempted the reservation does not affect the title to the land, but the conveyance is absolute and unconditional. The design of the parties to create relations which should survive them, and continue to exist in perpetuity by being annexed to the ownership of the estate of the grantee of the land on the one hand, and of the rent on the other, is manifest from the language of the instrument. They were careful to declare that the obligation to pay the rent should attach to those who should succeed the grantee as his heirs and assigns, and should run in favor of the heirs and assigns of the grantor; and the nature of a perpetually recurring payment requires that there should be an endless succession of parties to receive and to pay it. We have a legislative declaration, in an act of 1805, passed about ten years after this conveyance, that grants in fee reserving rents had then long been in use in this State (ch. 98); and the design of the Legislature by that enactment was not only to render such grants thereafter available according to their intention, but to resolve, in favor of such transactions, the doubts which it is recited had been entertained respecting their validity. Still, if, by a stubborn principle of law, a burden in the form of an annual payment cannot be attached to the ownership of land held in fee simple, or if the right to enforce such payment cannot be made transferable by the party in whom it is vested, effect must be given to the rule, though it may have been unknown to the parties and to the Legislature; unless, indeed, the interposition of the latter, by the statute which has been mentioned, can lawfully operate retrospectively upon the conveyance under consideration. It is not denied but that, by the early common law of England, conveyances in all respects like the present would have created the precise rights and obligations claimed by the plaintiff; but it is insisted that the act respecting tenures, called the statute of quia emptores, enacted in the eighteenth year of King Edward I., and which has been adopted in this country, rendered such transaction no longer possible. The principles of that statute have, in my opinion, always been the law of this country, as well during its colonial condition as after it became an independent State. A little attention to the pre-existing state of the law will show that this must necessarily have been so. In the early vigor of the feudal system, a tenant in fee could not alienate the feud without the consent of his immediate superior; but this extreme rigor was soon afterwards relaxed, and it was also avoided by the practice of subinfeudation, which consisted in the tenant enfeoffing another to hold of himself by fealty and such services as might be reserved by the act of feoffment. Thus a new tenure was created upon every alienation, and thence there arose a series of lords of the same lands, the first, called the chief lords, holding immediately of the sovereign; the next grade holding of them; and so on, each alienation creating another lord and another tenant. This practice was considered detrimental to the great lords, as it deprived them, to a certain extent, of the fruits of the tenure, such as escheats, marriages, wardships, and the like, which, when due from the terre-tenants, accrued to the next immediate superior. This was attempted to be remedied by the 32d chapter of the Great Charter of Henry III. (A. I). 1225), which declared that no freeman should thenceforth give or sell any more of his land, but so that of the residue of the lands the lord of the fee might have the service due to him which belonged to the fee. 1 Ruffhead's Statutes at Large, 8. The next important change was the statute of quia emptores, enacted in 1290, which, after reciting that "forasmuch as purchasers of lands and tenements (quia emptores terrarum et tene~
mentorum), of the fees of great men and other lords had many times entered into their fees to the prejudice of the lords,"' to be holden of the feoffors and not of the chief lords, by means of which these chief lords many times lost their escheats, etc., "Which things seemed very hard and extreme unto these lords and other great men," etc., enacted that from henceforth it should be lawful for every freeman to sell at his own pleasure his lands and tenements, or part of them, so that the feoffee should hold the same lands and tenements of the chief lord of the same fee by such services and customs as his feoffor held before. Id. 122. The effect of this important enactment was, that henceforth no new tenure of lands which had already been granted by the sovereign could be created. Every subsequent alienation placed the feoffee in the same feudal relation which his feoffer before occupied; that is, he held of the same superior lord by the same services, and not of his feoffor. The system of tenures then existing was left untouched, but the progress of expansion under the practice of subinfeudation was arrested. Our ancestors, in emigrating to this country, brought with them such parts of the common law and such of the English statutes as were of a general nature and applicable to their situation; 1 Kent, 473, and cases cited in note a to the 5th ed.; Bogardus v. Trinity Church, 4 Paige, 178; and when the first constitution of this State came to be framed, all such parts of the common law of England and of Great Britain and of the acts of the Colonial Legislature as together formed the law of the Colony at the breaking out of the Revolution, were declared to be the law of this State, subject, of course, to alteration by the Legislature. Art. 35. The law as to holding lands and of transmitting the title thereto from one subject to another must have been a matter of the first importance in our colonial state; and there can be no doubt but that the great body of the English law upon that subject, so far as it regarded the transactions of private individuals, immediately became the law of the Colony, subject to such changes as were introduced by colonial legislation. The lands were holden under grants from the crown, and as the king was not within the statute quia emptores, a certain tenure, which, after the act of 12 Charles II. (ch. 24), abolishing military tenures, must have been that of free and common socage was created as between the king and his grantee. I have elsewhere expressed the opinion that the king might, notwithstanding the statute against subinfeudation, grant to his immediate tenant the right to alien his land to be holden of himself, and thus create a manor, where the land was not in tenure prior to the 18th Edward I. The People v. Van Rensselaer, 5 Seld. 334. But with the exception of the tenure arising upon royal grants, and such as might be created by the king's immediate grantees under express license from the crown, I am of opinion that the law forbidding the creating of new tenants by means of subinfeudation was always the law of the Colony, and that it was the law of this State, as well before as after the passage of our act concerning tenures, in 1787. A contrary theory would lead to the most absurd conclusions. We should have to hold that the feudal system, during the whole colonial period, and for the first ten years of the State government, existed here in a condition of vigor which had been unknown in England for more than three centuries before the first settlement of this country. We should be obliged to resolve questions arising upon early conveyances, under which many titles are still held, by the law which prevailed in England during the first two centuries after the Conquest, before the commencement of the Year Books, and long before Littleton wrote his Treatise upon Tenures. * * *