author: Selden, J.

text:
    Van Rensselaer v. Read.
    'A perpetual annual rent, reserved on a conveyance in fee, passes under a devise of all the testator’s tenements and hereditaments.
    The legal right of action on a covenant for the payment of such rent passes to the assignee of the rent at common law, independently of the act of 1805 (ch. 98; 1 R S., p. 747, §§23-25), or of the Code.
    The action is maintainable on the privity of estate which subsists between the grantee of the rent and the grantee of the land out of which it issues, although there is no reversion in the former or his grantor.
    If any difficulty had existed, prior to the Code, in supporting such aif action, it would have been removed by the provisions abolishing the-objection of maintenance and merging legal and equitable remedies, so far as relates to forms. ' ,
    As chapter 98 of 1805 related only to the remedy, and an abundant remedy exists independent of its provisions, the partial repeal of that statute by chapter 396 of 1860 is constitutional.
    Action, commenced in July, 1860, for the recovery of rent, upon a covenant for its payment, made by the grantee in a conveyance of lands in fee, executed in the year 1789.
    In the complaint it is alleged, that Stephen Van Rensselaer, now deceased, as party of the' .first part, and George Read as party of the second part, on the 81st day of March, 1789, at Watervliet¡ in the county of Albany, mutually executed, signed, sealed and delivered, a certain indenture, bearing date on that day, by which the said Van Rensselaer, granted, bargained, sold, released and confirmed, unto the said Read, his heirs and assigns, certain lands in the county of Albany,-within, and part of the Manor of Rensselaerwick, on the west side of the Hudson river, containing one hundred and twenty-one acres, in the indenture particularly described, to have and to hold the same with the appurtenances, of the said party of the first part, his heirs and assigns, unto the said party of the second part his heirs and assigns forever: yielding and paying therefor yearly and every year during the continuance of said grant, unto the said Stephen Yan Rensselaer, now deceased, his heirs and assigns, the yearly rent of seventeen and one quarter bushels of good clean merchantable winter wheat, and four fat fowls, to be delivered at the mansion-house of the said Stephen Yan Rensselaer, his heirs or assigns, in the said manor, and performing, one day’s service with carriage and horses, in and upon the second day of January in each year; which yearly rent the party of the second part did thereby, for himself his heirs, executors, administrators and assigns, grant, covenant, promise and agree, to and with the said Stephen Yan Rensselaer, his heirs and assigns, that he, the said party of the second part, his heirs, executors, -administrators and assigns, should and would, well and truly pay, or cause to be paid to the said Stephen Yan Rensselaer, his heirs or assigns, at the days and place, and in the manner specified in said indenture, in each year. It was also alleged, that it was further provided in said indenture, .that if the rent or any part of it, should be behind and unpaid, for the space of forty days after any of the said days of payment, that then, and in every such case, it should be lawful for the said Stephen Yan Rensselaer, his heirs or assigns, or any of them, at their option, either to prosecute for the.same in some court of record, or to enter into the whole or any part of the premises, and there to distrain for the amount of rent in arrear and the costs and charges of distress and sale; that it was also further provided, that, if it should at any time happen, that no sufficient distress could be found upon the premises, to satisfy such rent due and in arrear, or if either of the covenants and conditions therein before contained, on the part of the said party of the second part, his heirs and assigns, to be performed, fulfilled and kept, should not be performed, fulfilled and kept, or should be broken, then, and in each and every such case, and from thenceforth and at all- times thereafter, it should be lawful, to and for the said Stephen Yan Rensselaer, his heirs and assigns, or any of them, into the whole of the thereby granted premises, or into any part thereof in the name of the whole, to re-enter, and the same as in his and their former estate, to have again, repossess and enjoy; and the said party of the second part, his heirs and assigns, and all others, thereout and from thence utterly to expel, put out and remove; the said indenture, or any thing therein contained, to the contrary thereof in any wise notwithstanding.
    It was further alleged that by virtue of the said indenture and demise, the party of the second part became seised of and totik possession of the said demised land and appurtenances, which have ever since the execution of the said indenture, been held and possessed by virtue of and under said indenture, by the party of the second part and his heirs or assigns; that the said Stephen Yan Rensselaer was the owner and seised in fee of said demised land and appurtenances, and of the said manor, at the time of the execution of the said indenture; and was the owner and seised in fee of the said rent, covenants and conditions,' and of his estate and interest remaining after such demise in said land and appurtenances, at the time of the execution of his will and testament, and of his death as in said complaint, afterwards mentioned; that after the making of the said indenture, and before the first day of January, 1844, all the estate, right, title and interest of the party of the second part to said indenture, in and to a part of the said demised premises, by assignment legally made to, came and vested in the defendant [being a divided part of-acres, of equal valué by the acre with the residue;] and has been possessed, and the profits thereof enjoyed by the defendant, ever since January 1st, 1844; that on the 18th of April, 1837, the said Stephen Yan Rensselaer, duly made his last will and testament, whereby he gave and devised to the plaintiff, his heirs and assigns, the said rent, covenants, conditions, and all the said remaining interest and estate of the said Stephen Yan Rensselaer, of, in and to the said demised premises; that the said Stephen Yan Rensselaer, the testator, afterwards, on the 26th of January, 1839, died, so seised of said rent, covenants and conditions, and of his remaining interest and estate, in said demised premises, without altering his said will as to the said devise, whereby the said plaintiff then became seised of the said rent, covenants, condition, interest and estate in fee; that the grantor, his heirs and assigns, and the plaintiff have kept and performed every thing in the indenture to be kept and performed on their part; that the rents for seventeen years, from 1844 to 1860, both inclusive, accrued and became due after the death of said' Stephen Van Eensselaer, deceased, and after the defendant be.came, and while he was assignee as aforesaid, and still are due and in arrear (to at least the amount hereinafter claimed), and unpaid to the plaintiff, and which, or any part thereof, the defendant has neglected and refuses to pay; that the aggregate value of the rents and services, so in arrear and due from the defendant, is the sum of $392.13, which with the interest amounts to $548.78, for which sum judgment is demanded.
    The defendant, in his answer, denied each and every allegation of the complaint.
    The action was tried before Mr. Justice Gould, without a jury, at the Albany Circuit, on the 18th of January, 1861.
    A motion to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, was denied, and the defendant’s counsel excepted. The plaintiff then introduced the indenture between StephenVan Eensselaer” and" George Eead, dated March 31st, 1789, conveying the lands and containing covenants and conditions as alleged in the complaint. It was admitted that Stephen Van Eensselaer, the grantor, died January 26, 1839, leaving a last will and testament duly executed by him, containing, after other devises, not including the property in question, the following clause :
    “ 2d. I give, devise and bequeath unto my son, Stephen, his heirs and assigns, all the residue of my lands, tenements," hereditaments and real estate, with the rents, issues and profits thereof, situate in the Manor of Eensselaerwyck, on the west side of Hudson river.” The plaintiff also proved that the defendant had made payments of the rents under the indenture, on account of the whole lot, in the years 1840, 1843 and 1845, and the amount remaining due at the time of the trial,. and rested.

      The defendant’s counsel moved for a nonsuit on the following grounds, with others not relied upon here:
    1. That the deed from Stephen Van Rensselaer to 'George Read was a deed of assignment, and not of lease, leaving no reversion in the grantor, and did not create the relation of ■ landlord and tenant.
    2. That the plaintiff had failed to prove any estate, title or interest in the premises for which rent was sought to be recovered, and therefore could not maintain the action.
    3. That the plaintiff had failed to prove any assignment or transfer of even the rents or covenants to himself; that they did not pass by the devise of Stephen Van Rensselaer to him; that such devise merely passed real estate which had a descriptive location; that mere choses in action did not pass by it.
    4. That the demands sought to be recovered were purchase ■ money payments on the vendition of the land, and not rent payments, and do not run with the land-; and the defendant being the vendee of the land, and not á lessee, or assignee of a lessee, he was not liable in this action.
    5. That chapter 98 of the Laws of 1805, enabling grantors of reversions to take advantage' of the conditions to be performed by lessees, and the subsequent enactments thereof having no application to the deed in fee to George Read, this action was not maintainable.
    The court denied the motion for a nonsuit, and.the counsel for the defendant excepted to the decision.
    Ho further evidence was offered, and the judge thereupon found the following facts and conclusions of law, viz.: That the indenture or lease in fee reserving rent, .as alleged in the complaint, was executed and delivered by the parties thereto respectively as alleged in the complaint; that under said indenture, or lease in fee, the grantee became owner in fee of the granted lands, and the grantor owner in fee of the rent in the indenture mentioned.
    That the grantor died on the 26th day of January,' 1839, Still owning said rent, having first made his last will and testament, as alleged, which he left in full force, whereby he devised said rent to the plaintiff, who became owner thereof in fee, and has since continued such owner.
    That the defendant, before the first day of January, 1840, by assignment, became the owner of all the estate and interest of the grantee aforesaid, in the whole of the lot granted to George Eead by said indenture, and continued such owner until the time of the commencement of this action.
    That the balance of the value of the rent which accrued during the time when the defendant held said lands as assignee, after allowing all payments, was $371.19, which, with interest to the time of the trial, amounted to $561.68; that the defendant was liable to the plaintiff and the plaintiff was entitled to judgment for that sum, with the costs of the action.
    Judgment was entered in pursuance of that finding, which was affirmed by the Supreme Court at general term, and the defendant thereupon brought this appeal.

      Anson Bingham, for the appellant.

      Charles M. Jenkins, with whom was John K. Porter, for the respondent.
   Selden, J.

A brief statement of the principles which appear to be definitely settled, touching the rights and liabilities of parties under instruments of the nature of that which forms the-foundation of the present action, by enabling us to see distinctly what remains undetermined, will be of service in the examination of the questions now presented for decision. The following may be regarded as principles thus settled:

1. That, since the passing of the act of 1787,. “ concerning tenures” (however it may have been before that time), it has not been possible to create any new tenures in this State upon conveyances in fee. Such conveyances operate as assignments and not as leases, whatever name may be given to them, and leave neither any reversion, nor possibility of reverter in the grantor. (De Peyster v. Michael, 6 N. Y., 467; Van Rensselaer v. Hays, 19 id., 68.)

2. That an annual rent, issuing out of the lands, reserved in such Conveyance, to the grantor, his heirs and assigns forever, with a covenant on the part of the grantee for its payment, together with a right of distress and re-entry in case of nonpayment," although not a rent-service, for want of a reversion in the grantor, is a fee farm rent, or, if not strictly such, (Bradby on Distress, 34; Harg., n. 5, on Co. Litt., 143, b; 19 N. Y., 76,) it is a rent-charge in fee, arid equivalent to such rent-charge granted by the owner of lands in fee. (Litt., § 217; Co. Litt., 143, b; Gilbert on Rents, 16, 17, 39; 2 John. Cas., 26; 2 Cow., 659; 13 N. Y., 369; id., 77, 78, 100.)

3. That such rent is a hereditament and descends, in the absence of other disposition, to the heirs of the party to whom it is reserved, arid is devisable and assignable in all respects like other incorporeal hereditaments. (2 Sand. on Uses and Trusts, 32, 5th ed., Lond., 1844; Shep. Touch., 238; Lade v. Baker, 2 Vent., 149, 260-266; Maund's Case, 7 Co., 286; 2 Johns. Cas., 17; id., 24; 12 N. Y., 182; 19 id., 68, 100.)

4. The right to distrain, and the right to maintain actions of annuity, and assize of novel disseisin, at common law, followed the ownership of the rent, when it passed from the person to whom it was reserved, whether it passed by descent or assignment. (Vechte v. Brownell, 8 Paige, 212; Bradby on Dist., 51, 52; Adams on Distresses, 36; Maund’s Case, 7 Co., 28, b; Co. Litt., 144, b., and Harg., note 1; Roscoe on Real Actions, 65; Gilbert on Rents, 83-100; Litt., §§ 233-235.) Attornment by the tenant was necessary to entitle the assignee to distrain or to maintain annuity, and actual seisin of the rent by payment of a part, to authorize an action of assize; but that necessity, at least so far as related to attornment, was removed ■ in England, by the statute 4 Anne, ch. 16, § 9, which was early re-enacted in substance, and has since been kept in force, in this State. (2 Sand. on Uses and Trusts, 40-46; Butler’s Note, 272, to Co. Litt., lib. 3, 309 b.; Gilbert on Rents, 32, 33-51, 52; Doug., 624; Strange, 108; Yelv., 135; 2 Greenl. Stat., 115; 1 R. L., p. 525, § 25; 1 R. S., p. 739, § 146.)

5. That the covenants entered into by the grantee of the lands, in behalf of himself, his heirs and assigns, are covenants real which run with the land, and are binding upon the heirs and assigns of the covenantor, successively as to all breaches of such covenants which occur during their respective ownership of the lands. (Van Rensselaer v. Hays, 19 N. Y., 68; Platt on Covenants, 493, 494.)

6. That a devise or assignment of the rent gives to the devisee, or assignee, at least the equitable interest in the rent, and the right to equitable remedies for its recovery, without any aid from the act of 1805, partially repealed by the act (ch. 396, Laws of 1860; 19 N. Y., 85, 86).

7. That the personal representatives óf the original grantor, to whom 'the rent was reserved, can maintain no action on the covenant for the payment of rent, on account of any default .in payment occurring after the death of such grantor. (The Executors of Van Rensselaer v. The Executors of Platner, 2 Johns. Cas., 17.)

8. That a devisee or assignee of the rent, can maintain no action against the personal representatives of the original covenantor, on account of any default in payment of rent, occurring after the death of such covenantor. (The Devisees of Van Rensselaer v. The Executors of Platner, 2 Johns. Cas., 24.)

9. The terms of the devise to the plaintiff, are sufficient to vest in him the right to the rent in question.

Several cases have been decided by this court, in which the right of the present plaintiff, under the devise in question, to rents of the character of those here claimed, has been sustained, and although the subject of the sufficiency of the devise to vest the title to the rents in the devisee, does not appear to have been specially noticed by the court, it is hardly possible that it could have passed unobserved, and the decisions in those cases, if not conclusive, raise a strong presumption, in the plaintiff’s favor upon this point. (Van Rensselaer v. Snyder, 13 N. Y., 299; The Same v. Hayes, 19 id., 68; The Same v. Ball, Id., 100.) But regarding the question an open one, I entertain no doubt that the language of the devise is broad enough to embrace the rents. In the case of Hunter v. Hunter (17 Barb., 28-86), such rents were held to pass by the words all my lands, .in the county of Greene.” Whether perpetual rent charges are properly denominated lands, or not, they certainly come within the terms “ lands, tenements and hereditaments,” used in the present devise. Lord Coke says (Co. Litt., 6 a): “ Tenement is a large word to pass not only lands and other inheritances,, which are holden, but also offices, rents, commons, profits apprender out of lands, and the like, wherein a man hath any frank tenement, and whereof he is seised ut de libero tenemento. But hereditament is the largest word of all m that kind, for whatsoever may be inherited is an hereditament, be it corporeal, incorporeal, real, personal or mixed.’’ " (2 Rolle’s Ab., 57; Rich v. Sanders, Styles, 261-278.) That rent charges in perpetuity, are hereditaments, has never been questioned. (2 Johns. Cas., 21, 26; Jemmot v. Cooly, 1 Lev., 170; S. C., 1 Saund., 112.)

• From the foregoing statement it will be seen that the reservation of the rent in question is valid; that the covenant for its payment is a covenant real, running with the land, binding the defendant personally for its payment (his ownership of the lands, when it accrued, being undisputed), and that the plaintiff, by virtue of the devise from his father, was the owner of the rent when it became due, having, at common' law, the right to distrain for it, or to maintain an action of annuity for its collection. The further question is-now presented, whether the devisee or assignee of the rent may, either at common law, or by virtue of-any statute now in force, maintain an action on the covenant for the rent against the grantee or assignee of the covenantor.

The burden of the covenant, as we have seen, runs with the land, against the person who is, in equity, bound to pay the rent. Does the benefit of such covenant run with the rent in favor of the person who is in equity entitled to receive it? If the assignee of the rent cannot avail himself of the covenant for its payment, one object of the parties to the covenant will fail. They covenanted for acts to be performed by and to each other’s heirs and assigns annually forever, in regard to this land. These acts were designed to be performed directly between such heirs and assigns, without the necessity of maintaining the expensive and cumbrous machinery of perpetual personal representatives of the parties. The decisions which have been referred to show that, on the part of the person bound to pay the rent, no such machinery is necessary: that the law deals directly with him, as holding the land charged with the rent, and, therefore, in law as well as in equity, bound to pay it: that the legal and the equitable duties accompanying each other, both follow the title to the land, into whatever hands it may go, the assignee taking the place of the covenantor, and being bound by his covenants, so long as he remains such assignee, and no longer. (Platt on Cov., 494.) The same decisions show, also, that on the other side the equitable right to receive the rent passes to the assignee in the same manner as the equitable obligation to pay it follows the title to the land. It is claimed, on the part of the defendant, that the legal right of action on the covenant does riot pass with the rent to the assignee, but is either extinguished by the assignment, or remains in the original covenantee, or-his personal representatives.

The case of Hays, above cited, shows that the covenant is not extinguished by the assignment; and no adequate reason can be given for denying to the assignee of the rent the right to maintain an action upon it. The only reason which has been assigned in the authorities to which we have been referred for such denial, is that upon which the common law prohibited the assignment of all choses in action, the prevention of maintenance. But the covenant for the payment of rent is not within this rule. It is not ‘a covenant in gross or a mere chose in action (Stevenson v. Lombard, 2 East., 576), but is a part of the security for the payment of the rent. The rent itself being assignable, the covenant for' its payment should, it would seem, be assignable to the same extent, for the reason given by Chief Baron Gilbert, why a nomine poence, when provided for in the lease, passes to the assignee of the rent, viz.: “ because whosoever has a right to the rent ought to have all that security for the payment of it which was taken on the original creation of it.” (Gilbert on Rents, 143; Cro. Eliz., 895; 7 Peters, 605, 606.) Rent due is a mere chose in action and not assignable, but it is otherwise of rent not due. (Bradby on Distresses, 52; Adams on Distresses, 36.) The-covenant for its payment should, therefore, be assignable before breach, but not after. It was so held in Demarest v. Willard (8 Cow., 211; T. Ray., 200.)

Even if the law was clearly settled in England, that such covenants were not assignable, I should be unwilling to follow that-rule, unless it had been already recognized by our own courts, especially since we have abrogated the doctrine of maintenance, upon which alone it rested. It is, however, far from being settled in England, and no precedents in its support in this State have been brought to the notice of the Court; on the contrary, there are several decisions leading to the opposite conclusion.

In the case of Hays, the right of the assignee to maintain an action on the covenant for the payment of rent in a lease or indenture, like the present, was sustained, but the decision was placed upon the effect of the act of 1805, which was held to extend to the assignees of rents reserved in conveyances in fee, the same remedies by action for the non-performance of covenants, against the grantees and their assigns, which were secured to the assignees of reversions, by chapter 7 of the Laws of 1788.

Since that case was decided, and prior to the commencement of the present action, the legislature, by chapter 396, of the Laws of 1860, has declared that the act of 1805 and its reenactments shall not apply to deeds of conveyance in fee, made before the 9th day of April, 1805. The plaintiff’s cause.of action was complete under the act of 1805, prior to the passing of the act of 1860, and the constitutionality of the latter act, as applied to the present action, is therefore denied. The act of 1805, has been held to affect the remedy only; and not the contract, and for that reason not liable to this objection, when urged by the assignee of the covenantor. (19 N. Y., 68.) The objection to its repeal would nevertheless be effectual in favor of the plaintiff, if such repeal would deprive him of all substantial remedy for the recovery of the rent, but not otherwise. As I am satisfied that his remedy was not affected by the repeal, this question becomes immaterial. '

It is insisted on the part of the plaintiff, that the act of 1788, as reenacted in the Revised Statutes (vol. 1, p. 747, §§ 23, 24), without the declaratory act of 1805 (id., § 25), is broad enough to embrace the present case, and to give to the assignee of the rent, a right of action on the covenant for its payment. I think the act in its present form might fairly receive that construction ; but its title as originally passed, viz., “An act to enable grantees of reversions to take advantage of the conditions to be performed by lessees,” would create a doubt whether the general expressions contained in the act were not intended to be limited to grantees or assignees of reversions though such limitation is not expressed. So far as the statute has received the attention of judges, the opinion appears to have been entertained that its benefits were confined to parties having the reversion of the lands to which the conditions or covenants related, and such is the established construction of the statute 32 Henry VIII,. chapter 34, after which our statute was modeled. The solution of the present question, therefore, must depend upon the common law, or upon recent statutes relating to the prosecution of actions.

The first ground upon which the judgment in this case is sought to be sustained without the aid of the acts of 1788 and 1805, is, that the covenant for the payment of the rent, is not a merely personal covenant, but a covenant real, the benefit of which passed to the plaintiff on the devise of the rent to him. This question has been much discussed by judges and elementary writers, and cannot be regarded as entirely at rest on either side of the Atlantic. I shall not attempt to review the cases, as very little could be added to what appears in the English and American notes to Spencer's Case (1 Smith’s Lead. Cas., 22), and in the recent treatise of Mr. Sugden on Vendors and Purchasers.

Mr. Sugden says (vol. 2, p. 482): “ The rent charge is an incorporeal hereditament, and issues out of the land, and the land is bound by it; the covenant, therefore, 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.” Again, at page 492, after reviewing the English cases bearing upon the question, he says : “ Upon the whole it is submitted, that covenants like those in Brewster v. Kidgéll ” [which was a case of a rent charge in fee with a covenant for its payment, free from taxes],“ ought to be held to run in both directions; with the rent or interest carved out of or charged upon it,” [the land] “ in the hands of the assignee, so as to enable him to sue upon them; with the land itself in the hands of the assignee,, so as to render him liable to be sued upon it.” This conclusion is confirmed by the decision of the Supreme Court of the United States, in the case of Scott v. Lunt’s Administrators (7 Pet., 596), in which the assignee of a rent charge in fee, created by an indenture in all materialrespects similar to that under which the plaintiff claims, was held entitled to maintain an action of covenant for the rent, against the administrator of the covenantor.

The-difference of opinion on this question among judges and elementary writers, has, I think, mainly arisen from a misunderstanding by some of them, of the remarks of Lord Holt, in the case of Brewster v. Kidgell, as was shown in the opinion of Judge Denio, in.the case of Van Rensselaer v. Hays (supra). In that opinion, the learned judge, after referring to the passages above quoted, from the treatise óf Mr. Sugden says: “ The great learning of the author, afterwards as Lord St Leonards, Lord Chancellor of England, would incline me to adopt his conclusion, were it not that we have a precedent the other way in this State,” referring to the case of The Devisees of Van Rensselaer v. The Executors of Platner, (2 Johns. Cas., 26.) I do not understand the decision in that-case as in conflict with the opinion of Mr. Sugden; on the contrary, when considered in connection with the case of The Executors of Van Rensselaer v. The Executors of Platner, decided at the same term, it appears to me very strongly to confirm that opinion. Both those actions were brought to enforce covenants for the payment of rent, entered into by Plainer, the defendant’s testator, in an indenture executed in 1774, by which John Yan Rensselaer conveyed to him- in fee simple, reserving rent with rights of distress and re-entry, and with covenants for payment on the part of the grantee, in all respects similar to those contained in the indenture, on which the plaintiff relies in the present action. In the case in which the Executors of Yan Rensselaer, were plaintiffs, they had claimed in their declaration several years’ rent, which accrued during the life of their testator, and for one years rent, which became due after his death, and had obtained a verdict.for the whole. All the rent had accrued after the death of Plainer, the original covenantor. A motion was made in arrest of judgment, and two grounds were relied upon in support of the motion. First, that the executors of Plainer were not liable for rent, which accrued subsequent to the death of their testator. Second, that the executors of Yan Rensselaer, could not recover for rent, which accrued subse-. quent to the death of their testator. It was’ held that the executors of Plainer were liable on the express covenant of their testator, notwithstanding the descent of the land to his heirs, and that the recovery, so far as it embraced rent, which became due during the life of the plaintiff’s testator, was correct; but that the plaintiffs had no right of action for the year’s rent which became due after the death of their testator, and for that reason judgment was arrested. Kent, J., said: “It is clear that the executor can only go for rent due and payable at his testator’s death, where the rent, as in the present case, goes on the testator’s death to his heirs.’’ In the other case, parties to whom John Yan Rensselaer had devised the rent, were plaintiffs, and had obtained a verdict against the executor of Plainer for rents, which became due, subsequent to the death of both, Plainer and Yan Rensselaer. The judgment was arrested, not on the ground that the devisees were not entitled to maintain an action on the covenant, but on the ground that the defendants were not liable to the plaintiffs as devisees for the rent, “ which,” as the court says, “ is created by reason of the contract, and is by reason of the profits of the land, wherein none is longer chargeable with them than the privity of estate continues with them.” It was held that the executors of the covenantor were liable only by force of the personal contract of their testator, without reference to the land, and in that respect were liable only to those legally competent to represent the mere personal rights ” of the covenantee, which the plaintiffs clearly were not. Chief . JusticeLansing, who delivered the opinion of the Court, said: This rent is a fee farm rent, (Harg. Co. Litt., 145, b., n. 5,) or rent charge; it is perpetual. The rent is real estate, and so, certainly, is the estate out of which it issues; the rent and the land granted are equally transmissible to the heirs of the person seised. * * * If the covenant descends with the land, it must equally descend with the rent issuing out of the land; and if so, the personal representatives cannot, after the death of the parties, and for rents accruing after the death of both, either maintain or he subject to an action. On the privity of contract, the defendants cannot be liable to the plaintiffs, because they are not legally competent to represent the mere personal rights of the testator arising from the contract. They cannot otherwise represent him, than as the rights of the testator devolve upon them; but those being merely taken as devises, they are strictly confined to the real estate. If they claim against the defendants deducing their title by the devise, they must claim on the principle, that the common ligament, the estate charged, unites them in interest, as privies, with the defendants; but it is not pretended that the executors hold the estate, or have any interest in it, and on this ground the action is not attempted to be sustained.” All which this case decides, therefore, is, that the executors of a person, who covenants to pay a perpetual rent charge, are not liable on the covenant to any person except the covenantee, and his personal representatives; and, in connection with the previous case, which decides that such personal representatives, cannot recover for rent falling due after the death of their testator or intestate, for the reason that the rents go to the heir or devisee, it shows, that the executor of the covenantor can never be made liable for any default which does not occur during the life of one of the original parties to the' covenant. Possibly this limitation of the liability of covenantors may not be consistent with the common law rule, as recognized in England (Platt on Cov., 194, 195; id., 493; 7 Pet., 604); but it is in substantial accordance with the manifest intention of the parties, as expressed in the contract, and is strongly recommended by its justice and convenience. These cases having been decided by a court of great learning and ability, more than fifty years since, and the correctness of the decisions, so far as I am informed, never' having been questioned, I cannot do otherwise than to recognize them as ■ expressing the proper limitation of the liability of parties on covenants for the payment of perpetual rents.

The Supreme Court of Pennsylvania has decided that the liability of the personal representatives of the covenantor in such a case extends only to defaults which occur during the life of such covenantor. Lowrie, J"., in delivering the opinion of the court, among other things, says: “ The grantor of the land cannot be presumed to have placed any value on such a covenant; for the personal covenant of the original grantee is as nothing in a series of tenants lasting forever. The real security is the covenant running with the land and encumbering it, and this is the essential reliance of the owner of the rent. It is a covenant payable, in contemplation of the parties, out of the profits of the land; and it would be entirely unreasonable that the law should hold the administrator for the rent, when it gives the land to the heir.” (Quain’s Appeal, 22 Penn. State R., 10 Harris, 510.)

The obligation of the covenant, therefore, which passes from the original covenantor to his grantee of the land, and the other grantees in succession (Platt on Covenants, 480, 487), binding them to pay the rent accruing during their ownership, cannot, where the rent has been assigned, be enforced, either by the personal representatives or by the heirs of the covenantee, for want of any privity either of contract or estate between them and the assignee of the land; and such covenant becomes entirely nugatory unless it can be enforced by the assignee of the rent. I am satisfied that it is not extinguished, but may be enforced by the assignee of the rent; that there is such a privity of estate between the assignee of the rent, who is entitled to demand and receive it, and the owner and occupant .of the land, who is bound by the covenant to pay it, as entitles the former to maintain an action upon the covenant for its collection.

■ But two reasons have been assigned why the benefit of the covenant to pay the rent does not run with the rent in the same manner as its burden runs with the land. One is, that covenants do not run with land except where tenure exists; and the other, that covenants can only run with land, and that rents are not land. Neither of these propositions is sound. It has often been held that covenants, both as to their benefits and their burdens, run with land,- where no tenure in its strict sense exists between the parties.

The case of the prior of the convent, who, with the assent of his convent, covenanted with the lord of a manor to celebrate divine service for the lord and his servants, in his chapel, parcel of the manor, is a case of this kind. The covenant was held to pass to the grantee of the manor, although there was nothing in the shape of tenure between the parties. (5 Co., 176.)

In the case of Brewster v. Kidgell, before referred to, a covenant to pay a rent charge in fee, free from any deduction for taxes, was held to run with the land, without the aid of tenure.

In Holmes v. Buckley (Prec. in Ch., 39; 1 Eq. Cas. Abr., 27, pl. 4), one had granted, in 1622, a water-course through his lands,, and covenanted to, cleanse it, and in 1691, after the lands and the water-course had passed through several persons by assignment, it was held that the covenant was binding in favor of the assignee of the water-course, against the assignee of the land.

The case of Morse v. Aldrich (19 Pick, 454), was of a similar character. There had been a grant of the right to dig and carry away mud from the mill pond of the grantor, with a covenant on his part that he would draw off his pond when requested, in August or September, not exceeding six days in each year, to give an opportunity to dig and remove the mud. The action was against a portion of the heirs, and the assignees of other heirs of the covenantor, for a breach of this covenant. The Court held the defendants liable, on the ground that the contract was a grant of a subordinate interest in the lands, and the reversion or residue of the estate being reserved by the grantor, all covenants in support of the grant, o.r in relation to the beneficial enjoyment of it, were real covenants and bound the assignee. There was held to be, in that case, such a privity of estate between the parties, as made the cove nant run with the land.

In the" case of the Trustees of Watertown v. Cowen (4 Paige, 510), it was held by Chancellor Walworth that a covenant by the grantor, in a conveyance of lands in fee, not to erect a building on a common or square, owned by him, in front of the premises conveyed-, was a covenant running with the land, and passed to asubsequent grantee of the premises, without any special assignment of the covenant. Decisions embracing the same principle were made in Hills v. Miller (3 Paige, 254), and Barrow v. Richard (8 id., 351). In none of these cases was there-any relation of tenure between the parties.

The ordinary eases of covenants of warranty, for quiet enjoyment, and against incumbrances, in conveyances in fee, are familiar examples of covenants running with the land, where no tenure exists. The answer which is given to these cases by those who contend that the presence of tenure is necessary to enable covenants to run with the land, is, that the -benefit of covenants may run with the land without tenure, but that . the burden cannot. That distinction cannot be reconciled with .the decisions in Brewster v. Kidgell and Holmes v. Buckley, Morse v. Aldrich, or The Trustees of Watertown v. Cowen, above cited, and it has been repudiated in this Court, in the case of Van Rensselaer v. Hays, before referred to. Clearly, therefore, the presence of tenure is not necessary to enable covenants, either as to their benefits or their burdens, to run with land.

If the relation of landlord and tenant between the parties, was, as has been claimed, necessary to render covenants assignable, it would not be difficult to show that that relation exists in this case. A rent charge in fee, with the right of entry for default of payment, although not constituting a reversion, creates an interest in the land out of which the rent issues. (Jemmot v. Cooley, 1 Lev., 170; S. C., 1 Saund., 112; 2 John. Cas., 26.) The payments covenanted to be made in this case are not, as is claimed by the defendant’s counsel, purchase money payments but rent payments, although the conveyance of the land in fee constituted the consideration of the grant of the rent.' The payments are as clearly rent as they would have been if the like rent had been granted for the same consideration, by the original covenantor, out of other lands previously owned by him. (Littleton, §§ 217, 218, 219; Co. Litt., 143, b, 144, a.) In many of the cases in our courts, between parties similarly situated, they have been spoken of and treated as landlords and tenants, and the decisions in the cases of Van Rensselaer v. Snyder (13 N. Y., 299), and Van Rensselaer v. Ball (19 id., 100), can be sustained on no other ground, as they depended entirely upon a statute applicable only to parties holding that relation. (2 R. S., p. 505, § 30.)

The other branch of the objection is that covenants can run only with land. All the reasons for holding covenants relating to lands assignable apply with equal force to covenants relating to incorporeal hereditaments. (Platt on Covenants, 461; Norman v. Wells, 17 Wend., 146). The doctrine of Lord Holt, in Brewster v. Kidgell (supra), is that the covenant for the payment of a rent-charge in fee, would run with the rent, but the case did not involve that question, as the action was by the original covenantee. The opinion of Mr.. Sugden, ° as has been seen, concurs with that of Lord Holt, and it has been decided in England that a covenant runs with a lease of tithes, which, like rents, are mere incorporeal hereditaments. (Bally v. Wells, 3 Wils, 25, 30; 2 Smith’s Leading Cases, 3 Law Libr. ed., 125, note to Spencer’s Case.) The cases of Holmes v. Buckley and Morse v. Aldrich (supra), where covenants were held to run with grants of a water-course, and of a right to dig and remove soil, are to the same effect, those grants not giving to the grantees any title to lands, but only easements in the lands of the grantors. It is a settled proposition, therefore, that covenants may run with incorporeal as well as with corporeal, hereditaments.

But the question is not an open one in this State, whether covenants for the payment of rents pass to the assignee of the rents, without the aid of any reversion in the assignee. In the case of Demarest v. Willard (8 Cow., 206), the plaintiff had leased a house and lot to the defendant for two years, at an annual rent of $600, payable quarterly. The defendant covenanted to pay the rent, and to deliver up the premises at the end of the term, in good repair. The action was brought upon the covenant after the expiration of the term, the plaintiff claiming for rent in arrear, and damages because the premises were not delivered up in good repair. It was shown on the part of the defendant, that the plaintiff had assigned the lease to one Haswell, with all the rents to become due and payable during the term. The Court held that our statute to enable grantees of reversions to take advantage of conditions to be performed by lessees, had no application to the case, as the reversion had not been granted to Haswell. But it was nevertheless held, “ that Haswell might sue for and recover th'e rent in arrear, and consequently the plaintiff could not.” There had been a re-assignment of the arrears of rent by Has-well, after the expiration of the term, to the plaintiff. In regard to that, Chief Justice Savage, who delivered the opinion of the Court, said: “ The re-assignment by Haswell to the plaintiff, was perfectly Useless, in respect to the maintaining the suit. Arrears of rent are a chose in action, and not assignable like accruing rent. Haswell was assigned of the rent, and the whole became due before the re-assignment. If the plaintiff can recover the arrears it must be in the name of Haswell.” The Chief Justice, in his opinion, also refers to a case between Littlewood and Jackson, which had been decided by the same court seven years earlier (in 1820), in which the plaintiff, who was assignee of 1550 years, of á term of 1590 years, having no interest in the reversion, was held entitled to recover for nine years’ rent, which fell due during the portion of the term assigned to him. The Chief Justice said: As I understand this case, it decides that the assignee of the rent may recover it in that character, without being assignee of the reversion.”

The rulihg in these cases has been repeatedly followed since, both by the. Supreme Court and the Court of Chancery. Willard v. Tillman, 19 Wend., 358; The Same v. The Same, 2 Hill, 274; Childs v. Clark, 3 Barb. Ch., 52.)

In the case last cited, the plaintiff as the assignee of the lease and rents for seven years out of a term of twenty years, filed a bill against assignees of the lease, to recover arrears of rent which became due to him during his portion of the term, the original lessee being insolvent. On demurrer, the chancellor dismissed the bill, on the ground that the plaintiff, as assignee of the rent, had a perfect remedy at' law, against the assignees of the lessee, to recover such rent. In his opinion, the chancellor says: It is settled, both in this state and in England, that an assignment creates such a privity of estate between the assignee and the lessee that the former may maintain a suit in his own name for the rent which accrues and becomes payable while, such privity .of estate exists.” (Ardo v. Watkins, Cro. Eliz., 637-651; Allen v. Bryan, 5 B. & C., 512; Stevenson v. Lambard, 2 East., 576.)

In the case cited from 2 Hill, 274, Bronson, J., expressed some dissatisfaction with the previous cases; “ but,” he added “ the right of the assignee of the rent to sue in his own name was recognized by this court in Demarest v. Willard, and we ought not now to depart from that doctrine.” The reasoning of the learned justice shows that his doubts arose from his recognition of the doctrine that tenure, in its feudal sense, was necessary to enable covenants to run with land or real estate a doctrine which I think the cases show cannot be sustained-These cases related to leases for years only, but the doctrine of maintenance, which alone stands in the plaintiff’s way, is equally applicable to temporary and to perpetual covenants; and if, for any reason,'temporary covenants should be excepted from its. influence, there is much greater reason for excepting perpetual covenants of like character. It appears to me, therefore, to be substantially settled that there is such a privity of estate between the assignee of the rent, who, from the fact that it is by law assignable, is entitled to. demand and receive it, and the assignee of the land out of which it issues, and who is bound by the-covenant of his assignor to pay it, that the former, without any reversion in the land, can maintain an action on the covenant, at law, against the latter; and that there is no distinction in this respect between a rent in fee and one for life or years.

This conclusion renders it unnecessary to consider, at much length, the question as to the effect of the Code of Procedure upon the rights and liabilities of the parties under the, covenant, in question. Still, as the only objection which existed at common law to the assignment of merely personal covenants, so as to give a right of action to the assignee, grew out of the doctrine of maintenance, which has been entirely abo; lished in this state, so far as relates to ordinary choses in action, by the Code of Procedure (§§ 111, 112), I do not see why the assignee of the rent could not now nlaintain an action on the covenant for the payment of such rent, in his own name, against any person bound by the covenant to pay it, whether the benefit' of the covenant did or did not run, at common law, with the rent. Chapter 197 of the Laws of 1835 would have had the same effect upon the present action, if it had not been superseded by the more comprehensive provisions of the Code, to which reference has been made.

The abolition of the doctrine of maintenance has no bearing upon the question of the liability of the assignee of the land to an action upon the covenants of his assignor, but that liability was shown, in the case of Van Rensselaer v. Hays (supra), to exist at common law; leaving undetermined only the ques- • tion in whose name, as plaintiff, such liability could be enforced.

,If any doubt can be held to exist in regard to the liability of the defendant to the plaintiff, in an action at law upon the covenant, there is none whatever as to his liability in equity (19 H. Y., 85); and the merger, so far as relates to the forms of proceeding, of legal and equitable remedies, by the Code of Procedure, would entitle the plaintiff to maintain the action on that ground, the case containing all the facts which are necessary to show his equitable right. (Brewster v. Kidgell, 12 Mod., 166; The City of London v. Richmond, 2 Vern., 421; Keffel v. Bailey, 2 Myl. & Keen, 517; Tulk v. Moxhay, 2 Phil., 774; Livingston v. Livingston, 4 John. Ch., 287; Rawle on Covenants, 298, 300.)

In my opinion, however, the right of the plaintiff to recover in this case is entirely clear, upon the ground that the covenants at common law run, as was said by Mr. Sugden, with the rent, in the hands of the assignee, so as to enable him to sue upon them, and with the land itself in the hands of the assignee, so as to render him liable to be sued upon them; and that for that reason the judgment should be affirmed.

Wright and Rosekrans, Js., took no part in the decision; all the other judges concurring,

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Van Rensselaer v. Slingerland.
    The statute abohshing distress for rent (ch. 274 of 1846, §3,) recognizes the assignable quaEty of a condition of re-entry for non-payment of rent reserved in a grant in fee, and gives to an assignee of the rent the same right to maintain ejectment as was conferred, by chapter 98 of 1805, repealed in 1860 (ch. 396), as to grants made prior to its passage.
    This was an action of ejectment, or in the nature of ejectment, commenced in 1856, and tried in September, 1860, at the Albany Circuit, before Mr. Justice Could, without a jury.
    The complaint stated that on the 9th of July, 1790, Stephen Van Rensselaer, now deceased, as party of the first part, and Cerrit Seager, Jun., as party of the second part, executed,. sealed and delivered an indenture, by which Van Bensselaer conveyed, in fee simple, to Seager the lands sought to be recovered, describing them, being 123 3-4 acres, situated in Hew Scotland, Albany county, and within and parcel of the manor of Bensselaerwick, on the west side of the Hudson river, the said Seager, his heirs and assigns, yielding and paying therefor, yearly, during the continuance of the grant, unto the said Van Bensselaer, his heirs and assigns, the yearly rent of 15 bushels of wheat, 4 fat hens, and performing one day’s service with carriage and horses, the payments to be made on the second day of January in each year, with a covenant for the payment of the rent, and authority to Van Bensselaer, his heirs and assigns, to distrain, in case the rent should be in arrear 28 days; and the indenture then contained, as stated in the complaint, the following condition: “ And it was provided further, and the said indenture and everything therein contained was upon the express condition that if it should at any time happen that no sufficient distress could be found upon the premises to satisfy such rent due and in arrear as aforesaid, or if either of the covenants and conditions thereinbefore contained, on the part of the said party of the second part, his heirs and assigns, to be performed, fulfilled and kept, should not be performed, fulfilled and kept, then, and in each and every such case, and from thenceforth, and at all times thereafter, it should be lawful to and for the said Stephen Van Bensselaer, his heirs and assigns, or any of them, into the whole of the hereby granted premises, or into any part thereof, in the name of the whole, to re-enter, and the same, as in his and their former estate, to have again, repossess and enjoy; and the said party of the second part, his heirs and assigns, and all others, thereout, and from thence utterly to expel, put out and remove, the said indenture, or anything therein contained to the contrary hereof, in any wise notwithstanding.” And it w.as alleged that by virtue of that indenture the party of the second part thereto took possession of the lands therein described, and that the same have ever since been held by virtue of and under said indenture, by said party of the second part, his heirs and assigns. That after the making of said indenture, and before the first day of January, 1840, all the interest of the party of the second part to said indenture, in the demised -premises, came by assignment legally made to and vested in the defendant, and remained in him at the time of the notice thereinafter mentioned. That on the 18th of April, 1837, the said Stephen Van Rensselaer, the said grantor, duly made and executed his last will and testament, by which he devised to the plaintiff, his heirs and assigns, the said rent and all the remaining interest and estate of the said Stephen Yan Rensselaer in the said demised premises. That Stephen Yan Rensselaer died on the 26th of Jam!ary, 1839, seised' of the rent, and of, his remaining interest and estate in said demised premises, without having altered said will, whereupon the plaintiff became seised of said rent, interest and estate in fee ; that seventeen years’ rent, from 1840 to 1856, both inclusive, became due after the death of Stephen Yan Rensselaer, and still remains due tad unpaid, which the defendant neglects and refuses to pay; that since the second day of February, 1856, and during the default in payment of said rent, the plaintiff gave notice in writing, signed by him, directed to said lessee or grantee, party of the second part to said indenture, his heirs, executors, administrators and assigns, stating that the plaintiff intended to re-enter upon said demised' premises, in pursuance of the covenants, provisions, reservations and conditions of said indenture, and the act passed May 13, 1846, entitled “ An act to abolish distress for rent and for other purposes,” and served such notice by delivering the same to.the defendant personally; that the defendant then was and still is in possession of the said demised premises, having entered thereon under and by virtue of said indenture, under the party of the second part thereto, his heirs and assigns,' and continuing so in possession, unlawfully withholds from the plaintiff the possession of said land, which the plaintiff clailns in fee, and demands judgment for the recovery thereof.
    The defendant, in his answer, denied the allegations of the complaint.

      On the trial a motion was made to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which was denied, and the defendant’s counsel excepted.
    The plaintiff then gave in evidence the indenture described in the complaint, and the will of Stephen Yan Eensselaer, containing the devise therein set forth, and it was admitted that the devisor died" January 26, 1839.
    The plaintiff then gave in evidence a deed from Staats Seager and wife to the defendant, dated in January, 1847, conveying the farm therein designated as the farm described in the lease thereof from Stephen Yan Eensselaer to Garret Seager, dated July 9, 1790, and described by metes and bounds, as contained in said indenture, with covenants of warranty, except as against the reservations, conditions, &c., in the original lease of said premises from .Stephen Yan Eensselaer, deceased. It was admitted that a notice of intent to re-enter had been served as alleged in the complaint, that the so-called rent had not been paid when the notice was served, as also alleged in the complaint, and that the defendant was in possession of said premises at the time of the service of the notice and at the time of the commencement of this action.
    The defendant moved for a nonsuit upon the grounds:
    1. That the deed to Garret Seager, .Jr., was a deed of assign*ment and not of lease, leaving no reversion in the grantor, and did not create the relation of landlord and tenant.
    2. That the plaintiff had failed to show any estate, title or interest in the premises sought to be recovered.
    3. That he had failed to prove any assignment or transfer of even the rents to himself; that they did not pass by the devise, which merely passed real estate, having a descriptive location, and not choses in action..
    4. That the demands, for non-payment of which this action was brought, were purchase money payments on the vendition of the land, and not rent payments, and do not run with the land; and the defendant being the vendee of the land and not a lessee or assignee ‘of a lessee, is not liable, in this action.

      5. That the right of entry for condition broken is a litigious right and not assignable.
    6. That chapter 98 of the Laws of 1805, enabling grantees of reversions to take advantage of the conditions to be performed by lessees, and the subsequent re-enactments thereof, having no application to the deed in fee from "Stephen Van Rensselaer to Garret Seager, Jun., dated 9th July, 1790, this action is not maintainable.
    The judge denied the motion, and the defendant’s counsel excepted.
    The judge then found the facts as follows:
    That Stephen Yan Rensselaer and Garret Seager, Jun., on the 9th of July, 1790, executed the indenture set torth in the complaint. That the grantor died on the 26th of January, 1839, still owning the said rent and condition of re-entry, •having devised the rent, condition of re-entry, and all his interest in said premises remaining in him after said grant, to the plaintiff, who continued to own the same at the commencement of this action.
    That before January, 1848, all the estate and interest of the grantee, Garret Seager, Jun., in the said granted premises, by assignment, came to and vested in the defendant and continued in him at the time of the service of the notice hereafter mentioned.
    That the rent reserved by said indenture, and which fell due on the 2d of January, 1856, all remained unpaid, and also a large amount of the rent previously accrued on said indenture.
    That on the 24th of June, 1856, notice of an intention to • re-enter was given, as stated in the complaint. That the defendant at the commencement of this action (which was commenced more than fifteen days after service of such notice), • was in possession of said premises.
    On these facts the judge found as a conclusion of law, that the plaintiff was entitled to recover from the defendant the possession of the premises mentioned in the complaint, and judgment was entered accordingly. That judgment was affirmed at the general term, and from such affirmance the defendant took the present appeal.

      Anson Bingham, for the appellant.

      Charles M. Jenkins and John K. Porter, for the respondent.
   Selden, J.

In the two cases of Van Rensselaer v. Snyder (13 N. Y., 299), and Van Rensselaer v. Ball (19 id., 100), all the objections which are urged against the recovery in this case, on facts in all material respects the same as those which are here presented, were considered and held insufficient to prevent a recovery. But in the case of Van Rensselaer v. Ball, the objections that the right of re-entry for condition broken was not assignable, and that no reversion remained in the plaintiff’s devisor after his conveyance, and consequently the plaintiff had no estate in the premises claimed, were answered by refer-' ence to the statute, ch. 68 of the Laws of 1805, by which all the provisions of the act of 1788, entitled “ an act to enable grantees of reversions to take advantage of the conditions to be performed by lessees,” and the remedies thereby given, were extended as well to grants or leases in fee, reserving rents, as to leases for life and years. Without the aid of that act it was assumed that the action could not be maintained, for the reason that the provisions of the act of 1788 only extended to persons entitled to reversions, and that at common law a right of entry for condition broken was not-assignable. Since that decision was pronounced, the act of 1805 has been repealed by the legislature so far 'as it applied to deeds of conveyance in fee made before the 9th day of April, 1805. (Laws of 1860, ch. 396.)

■ The objection to the constitutionality of this act as applied to cases like the present, has already been overruled by this court and as that act became a law prior to the time of the trial of the present action, the rulings of the judge can gain no support from the act of 1805. The absence of the provisions of that act, however, is fully supplied, so far as those provisions related to the questions under consideration in this case, by the third section of ch. 274 of the Laws of 1846. The first section of that act abolishes distress for rent. The second section repeals several sections of the Revised Statutes giving, landlords, to a certain extent, priority of claim for the payment of rent, over the lien of executions levied upon goods of tenants on demised premises. The third section is as follows:

“ § 3. Whenever the right of re-entry is reserved and 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. The said notice may be served personally on such grantee or lessee, or by leaving it at his dwelling house on the premises.” (3 R. S., 5th ed., 830, § 10.)

This statute, in the cases to which it applies (and it is directly applicable to this case), accomplishes two objects. 1. It substitutes the notice of 15 days in the place of evidence that there was no sufficient distress on the demised or granted premises to pay the rent, and makes such notice equivalent, in giving a right of entry, to such evidence. (Van Rensselaer v. Snyder, supra.) 2. It recognizes the assignable quality of the condition of re-entry, and secures to the assignee the same rights in that respect which were possessed by the assignor to whom the right was originally reserved. The question, therefore; is the same as it would be if the original grantor of the premises, to whom the rent was reserved, were himself plaintiff in this action. If he were the plaintiff, and depended upon the act of 1846 alone, although he would be excused (having given the 15 days’ notice) from showing the want of a sufficient distress upon the premises, he would still be required to show a demand of the rent with all the technical precision which was required by the common law to effect a forfeiture of the tenant’s estate. But the Revised Statutes have relieved the landlord from the necessity of making such demand where a half year’s rent or more is in arrear, making the service of a declaration in ejectment to stand instead of such demand (2 R. S., p. 505, § 1; vol. 3, 5th ed., p. 829, § 30); and this provision has been held applicable as well to grants in fee reserving rent as to leases for life or years. (Van Rensselaer v. Snyder, supra.)

The plaintiff in this case proved all the facts which are required to be proved under these two statutes, to justify a recovery, if ejectment, or an action in the nature of ejectment, is a proper remedy to gain possession of lands, without previous entry, on breach of condition for re-entry un default in pay. ment of rent. No entry is necessary to maintain the action in any case where the immediate right of possession exists in the plaintiff. (2 R. S., p. 303, § 3; p. 306, § 7; p. 505, § 30; 4 Seld., 118.) The statute introduced no new rule on this subject (Roscoe on Real Actions, 497; 3 Co. Litt., Thomas’ ed., 15 note I). The cases of Van Rensselaer v. Snyder and Van Rensselaer v. Ball are in effect decisive of the present action. The only distinction between them arises from the partial repeal of the act of 1805 since those actions were tried, the place of which, so far as relates to the questions arising here, is perfectly supplied by the act of 1846, which still remains in force. The objections that the plaintiff has no reversion, and that a condition of re-entry can only operate by putting an end to an estate, and cannot give an estate to a stranger to the title, would have been no answer to the action even at common law. It was decided by the unanimous opinion of the judges of the King’s Bench, in the case of Jemmot v. Cooly, which was three times argued, that the grantee of a rent charge in fee, without interest in the land beyond that given to him by such - grant, could maintain ejectment after default in payment of the rent. In the opinion, Kelynge, Twysden and Wyndham, Js., are reported to have said that “ the power of entry is an inheritance and descends to the heir.” (1 Lev., 170.) The case is also reported in T. Ray., 135, 158; 1 Saund., 112; 1 Sid., 223, 262, 344. In that case, the grantee of the rent charge had entered and made a lease to the plaintiff in the ejectment, but, as has been shown above, entry was not necessary. The right of entry must exist before a lawful entry can be made, and that right is all which is required to maintain the action. The only statutory aid which the plaintiff in the present case required was, that his rights as assignee of the right of entry should be recognized (2 Seld., 506, 507), which was done by the act of 1816. The judgment should be affirmed.

Weight and Rosekeans, Js., took no part in the decision; all the other judges, concurring,

Judgment affirmed.


author: Selden, J. Emott, J.

text:
    Duffy v. The People.
    Where a prisoner has made confessions.under the influence of threats or promises, evidence may be received of facts having been ascertained in consequence of such confessions without proof of his statement as to the facts discovered, unless he require proof of so much of his confession as related to those facts.
    The jury in criminal cases are bound by the instructions of the court as to the law, to the same extent as in civil cases.
    Wbi-t of error to the Supreme Court. The plaintiff in error Henry Duffy, together with Michael O’Brien, was charged in the indictment in this case, presented by the Grand Jury to the General Sessions of the Peace for the city and county of New York, with having, on the 18th day of November, 1861, at the first ward in the city of New York, feloniously assaulted one-Sullivan, and against his will, and by violence to his person, feloniously robbed, stolen and carried away from him, a watch of the value of twenty-five dollars, and a chain of the value of ten dollars, the property of the said Sullivan.
    Duffy having been arraigned, pleaded not guilty, and on the trial in December, 1861, Sullivan was called by the District Attorney as a witness, and testified as follows: “ I know the prisoner; I met him on the night I lost my watch, at a saloon in Broadway; he had a friend with him; we all had something to drink; I left to go home, and they went with me; on the way and near Forty-First street, they both caught hold of me, one by the legs and the other by the throat, and pushed me up against the fence, and one of them took my watch and chain from me, the other caught me by the legs and threw me over it; I said nothing and did nothing to prevent them; I was afraid to do so; I knew them too well for that; after they had got them, one left immediately, but the prisoner walked away; I got up and overtook him; I told him they had done that pretty well, that it was pretty slickly done; he said what? I said nothing, never mind; I asked him to go with me to a dance-house near by; I expected to find friends there; I wanted to get my property back; he went with me; it was then ten or eleven o’clock; I saw a friend of. his at the dance-house named Frank; I told him the prisoner had my watch and chain; he spoke to the prisoner a few minutes aside from me, and then told me the prisoner had not got it; the prisoner left the place right away after that; I staid a little while and then went home; I saw officer Clark the next day and had the prisoner arrested.”
    Officer Clark, called by the District Attorney, testified as follows: “I know the prisoner; I arrested him on this charge, searched him and found nothing on his person; a few days after his arrest I saw him in prison, and had a conversation about this matter.”
    District Attorney: “ What did he say to you about it ?” .
    Prisoner’s counsel: “ Did you make him any promises of favor previous to his saying to you whatever he did say ?”
    Witness: “Yes; I told him if he would tell me where the watch was, I would do all I could to get him out of the difficulty.”
    District Attorney: “ You need not say what he told ; you may state what you did in consequence of what he said about it.”
    The prisoner’s counsel objected to his giving in evidence what he did in consequence of what the 'prisoner said about the watch.

      The court overruled the objection, and the prisoner’s counsel excepted to the ruling.
    Witness: “I went to the pawn office in Walker street and got the watch.” He produced the watch, which was identified by the witness Sullivan as the one taken from him.
    ' The bill of exceptions states, that there was other testimony but not material to the exceptions taken.
    All that appears in regard to the charge of the court is the following, viz.: “ The court, in charging the jury, charged as follows: If you believe the witnesses for the prosecution, it will be your duty to render a verdict either of robbery, or of larceny from the person, or of grand or petit larceny; and it will be for you to say which.” To which charge the prisoner’s counsel excepted.
    The jury rendered a verdict of guilty, and the prisoner was sentenced to ten years’ imprisonment in the state prison. That judgment was affirmed on writ of error, by the Supreme Court, and the prisoner prosecuted the present writ of error in this court.
    S. H. Stewart, for the plaintiff in error.

      A. Oakey Hall, District Attorney, for The People.
   Selden, J.

The rule which excludes evidence of the confessions of persons charged with crimes, where' such confessions have been made under the influence of threats or promises, has never been held to exclude evidence of any facts which were ascertained in consequence of such confessions. (Warrichshall's Case, 1 Leach, 264; Reg. v. Gould, 9 C. & P., 364; 2 East. P. C., ch. 16, § 94; Com. v. Knapp, 9 Pick., 511; Gates v. The People, 14 Ill., 433; State v. Vaigneur, 5 Rich., 391; State v. Motley, 7 id., 327; Deathridge v. State, 1 Sneed, 75; Jordan v. State, 3 George, 382.) The course pursued has usually been to admit proof of the words used by the prisoner with reference to the extraneous facts, and then to receive proof of the facts themselves. In Reg. v. Gould, Deathridge v. State, and Jordan v. State (supra), this course was pursued; but in Com. v. Knapp (supra), which was a case of murder, evidence was received of the finding of a weapon in consequence of the confessions of the prisoner, the confessions themselves being excluded. This course does not appear to me to be objectionable unless the prisoner should choose to have so much of his statement as related to the facts discovered, given in evidence in connection with the facts, which he would undoubt • edly be entitled to. ISTo such request was made in this case, and I think the testimony given by officer Clark was properly received.

The exception to the charge presents a question of greater difficulty. The judge instructed the jury, that if they believed the witnesses for the prosecution, it would be their duty to render a verdict, either of robbery or of larceny from the person, or of grand or petit larceny and it would be for them to say which.

In the discussion of the exception to this charge, it was treated, and perhaps correctly, as presenting the question, whether jurors in criminal trials are the judges of the law as well as of the facts, and consequently whether it is proper for courts to give them peremptory instructions upon the legal questions arising on such trials.

In regard to this question, I entertain no doubt that it is as much the duty of jurors to be governed by the instructions of the court upon legal questions in criminal as it is in civil cases. The following are the principal reasons which lead to the conclusion that the power of juries should be and is thus restricted.

1. The selection of jurors from all classes of the people whose education and business cannot, as a general rule, have qualified them to decide legal questions, renders it unreasonable as well as apparently unsafe to require them to pass upon such questions.

2. If jurors were to determine the law, its stability would be subverted, and it would become “ as variable as the prejudices, the inclinations and the passions of men.” Every case would be governed, not by any known or established rule, but by a rule made for the occasion. Jurors would become not only judges, but legislators as well.

" 3. All questions in regard to the admission or rejection of ¡evidence, being questions of law, are required to be decided by ’the court. • If jurors are to decide law and fact, their jurisdiction should extend to these questions, which often control 'the verdict.

4. Where the jury finds the facts of a case by special verdict, if they also find a conclusion of law, different from that which the law would derive from the same facts, the court disregards the conclusion, and gives judgment according to the facts found.

5. If the jury find a verdict in a civil case against law, the court sets it aside. That the same is not done in criminal cases, is owing, I think, more to the tenderness of the common law toward persons accused of crime, than to any recognized right of jurors to decide legal questions.

6. In all cases, civil and criminal, where only legal questions are raised, as, by demurrers to pleadings, demurrers to evidence, special verdicts, bills of exceptions, and motions in arrest of judgment, such questions are decided by the court and not by the jury.

7. The fact of guilt being ascertained and declared by the jury, the court determines the punishment, which the law prescribes for the offence.

The following authorities, will, I think, be found fully to sustain the conclusion to which I have arrived: 8 Barb., 610, 611; 1 Park., 152; 2 Sumn., 243; 2 Blackf, 156; Addison’s Rep., 156; id., 255; App. to do, 53; Stark. Ev., part 3, § 51, p. 450; Worthington on Juries, 193; 4 Bl. Com., 391; 3 Term, 428; Cases Temp. Hardw., 28; Ernst v. H. R. R. R. Co., lately decided in this court.

The unquestionable power of juries to find general verdicts, involving both law and fact, furnishes the foundation for the opinion that they are judges of the law, as well as of the facts, and gives some plausibility to that opinion. They are not however, compelled to decide legal questions, having the right to find special verdicts, giving the facts, and leaving the legal conclusions, which result from such facts, to the court. When they find general verdicts, I think it is their duty to be governed by the instructions of the court as to all legal questions involved in such verdicts. They have the power to do otherwise, but the exercise of such power cannot be regarded as rightful, although -the law has provided no means, in criminal cases, of reviewing their decisions whether of law or fact, or of ascertaining the grounds upon which their verdicts áre based.

• The preceding position, however, does not dispose of the question presented by the exception. The further question remains, whether the instructions given were correct. Upon this ' question, I think the charge excepted to, although it may not, in this case, have been productive of injustice, is liable to very grave objections.

In every accusation of crime, there is involved the question of felonious or criminal intent, which is usually, if not in all cases, a question of fact peculiarly within the province of the jury to decide. A charge to the jury, that upon the facts testified to, assuming them to be true, it would be their duty to convict the prisoner, if ever proper, would be so only in the very rare cases in which the force of the facts proved should be such, as to make the inference of criminal intent, an inference of law, and not of fact. The testimony against Duffy, although very strong, did not present such a case. If the jury had found, in a special verdict, the facts testified to, as they appear in the bill of exceptions, the court could not, I think, on such • a verdict, have adjudged the prisoner guilty of either robbery or larceny. It may fairly be inferred from the facts testified to that Duffy did not take the watch, but that it was taken by O’Brien. It is certainly not a legal conclusion from the facts that he did take it. On the verdict, therefore, he would have a right to assume, the fact not being found against him, that he did not take it. (Rex v. Francis, Strange, 1015; 2 Hawk. P. C. Ch., 47, § 9.) It is equally a matter of doubt whether he knew that O’Brien took it. That fact is not found, nor is it proved, otherwise than by circumstances, which, it may be conceded, raise a very strong presumption that he knew it, but it is not a conclusive presumption; in other words, the law does not adjudge, upon those facts, that he knew it: Aside from the fact of the finding of the watch in consequence of his conversation with the officer, the probability would be nearly as strong that he did not, as that he did, know that the watch had been taken. His conduct, .in remaining with Sullivan after the assault, going with him to the dance house, making no attempt at escape, or concealment, and his want of participation (so far as. appears), in the fruits of the robbery, are circumstances which might be urged, with some force, in' his favor. His assistance in finding the watch, is not absolutely irreconcilable with innocence. He might well say, in explanation of this fact, O’Brien told me he had pawned a watch in Walker street,.or, I knew, he was in the habit of pawning goods there, and therefore advised, the officer to inquire there for it. In my opinion the law does not pronounce such a position irreconcilable with the facts proved, although the jury might with propriety have drawn a different conclusion. (1 Comst., 524; 20 Pick., 173.)

The case would then rest, so far as Duffy was concerned, upon his joining O’Brien,' in an unprovoked assault upon Sullivan, and the taking of the watch by O’Brien, without his knowledge, and without any participation on his part, either by act or intention, in the robbery. " In such case, although O’Brien would be guilty of robbery, Duffy would be guilty only of the assault and battery, in which he. participated. If the robbery had been the natural result of the assault, or committed in furtherance of the common design, both would have been responsible, although one only committed the particular act. If O’Brien had struck Sullivan a blow producing his" death, both would have been guilty of murder, because such result, though not designed, might be regarded as a probable consequence of the assault. This principle of joint liability, however, does not apply when one of the parties departs entirely from the common object, and commits a separate crime having no relation to such object. (Rex v. Plummer, Kelyng, 109; S. C., 12, Mod., 627; 2 Hawk. P. C. Ch., p. 29, § 9; Kelyng, 47; 1 Russ. on Cr., 2d ed., 24, note h.) It is no answer to this position'to say that the evidence tends very strongly to show a joint design to commit the robbery as well as the assault; because that was a question, if not conclusively determined by the evidence, which it was the province of the jury to decide. I think the question of the guilt or innocence of the prisoner, admitting all the testimony to be true, was one which belonged to. the jury to decide, and that the positive instruction, that it was their duty to find him guilty of robbery or larceny, was erroneous. It is not only the right of persons charged with crime to have submitted to the jury every question of fact involving their guilt or innocence, but the preservation of"that system of administering justice, undoubtedly the wisest which has yet been devised, in which questions of law and questions of fact are separated from each other, and their determination committed to different bodies of men, requires not only that the jurors should not be allowed to usurp the duties which belong to the judges, but that judges should carefully abstain from encroaching upon the peculiar province of the jury. This consideration gives to the present case, not unimportant in itself, a consequence which it would not other•wise possess.

Another view of the charge would seem to demonstrate its fallacy. The jurors were instructed that, if they believed the witnesses, it was their duty to find the defendant guilty of one of four distinct offences, and it was for them to say which. This is equivalent to saying, that upon those facts the law determined that the prisoner was guilty of one of the four crimes, but did not determine that he was guilty of either one in particular. This could not be correct. If the law determined, on those facts, that the defendant was guilty of crime, it must also have determined of what crime he was guilty; The jury was left at liberty to say, as to either of the' enumerated crimes, the defendant was not guilty, but not that he was guiltless of all. In my opinion, the judgment should be reversed and a new trial ordered.' A majority of my associates, however, are of opinion that the evidence of Duffy’s participation in the robbery was sufficiently clear to justify the positive instructions which were given to the jury on that subject, and all agree that the other question was correctly decided. The judgment of the court below must therefore be affirmed.

Marvin, J., concurred in this opinion throughout, and Rosekrajsts, J., was for reversal for the judge’s failure to instruct the jury as to which of the offences stated the prisoner was guilty.

Emott, J.

The instructions to the jury submitted to them the only question of fact in the case, and the whole of it. That was whether the witnesses who had stated the facts were worthy of credit. There was no evidence except that of the witnesses for the people. There was no conflict, and no difference as to the facts among the witnesses. These facts were sufficient to constitute the offence. All that there was for the jury to determine was whether the witnesses should be believed. If they were believed, a certain state of facts was proved, and from that the conclusion was a legal one, that the prisoner was guilty of a certain crime. I entertain no doubt that the Court had the same right to pronounce upon the law as the jury upon the facts. I agree fully with Judge Selden’s reasoning on this point. It follows that in this case it was the duty of the judge to instruct the jury what crime the prisoner , had committed, because the facts were undisputed, and were not circumstantial but direct evidence of the commission of an offence by two persons, of whom the prisoner was one. It is true that the judge instructed the jury that the evidence showed the commission of one of three offences. It is objected that there was an uncertain and insufficient declaration of the law. But we must assume that the judge did instruct the jury as to these various offences. The case brings before us only so much of the charge as presents a single question, and the presumption is that the jury were properly instructed on all other points.

The evidence that the stolen property was found in a certain place, in consequence of what the prisoner told an officer, was properly received, although the confession to the officer was not evidence, because obtained by promises of favor. I am satisfied with the rule and the reasoning given in Warrichshall’s Case (1 Leach, 298), and in Grreenleaf’s Evidence, vol. 1, §§ 231, 232, on this point. (See, also, 9 C. & P., 364.) Confessions obtained by promises or threats are not received in evidence by our law, not because of any reason of public policy, or from any faith towards criminals, but simply because they are considered not worthy of credit. But where the facts show that any part of such confession is true, the reason no longer exists. (See note to 1 Leach, 301.) All that was proved in this case was that the officer went to a place indicated by the prisoner and found the stolen property. The prosecutor did not ask what the prisoner said about the property, or where it was, nor even prove that the prisoner said that he had placed it where it was found. He simply testifies that he went to a pawnbroker’s shop to get the stolen property, in consequence of what the prisoner told him about it. I cannot see the least doubt that this was good evidence.

There was no error at the trial and the conviction should be affirmed.

All the judges concurred that the jury are bound by the instructions of the court as to the law.

Judgment affirmed.


author: Davies, J. Balcom, J., (dissenting.)

text:
    Hasbrouck v. Lounsbury.
    The owner of a chattel and a vendee who receives possession upon condition that no title shall pass till payment, do not hold the relation of bailor and bailee simply; and the payment by a trespasser of a judgment recovered against him by the vendee, for damages for taking and converting the chattel, does not bar or affect a second action by the vendor for its value, when his right to possession reverts by non-payment of the price. *
    The plaintiff being the owner of a certain horse on the 22d of January, 1851, made an agreement with one Yandermark to sell said horse to him for the sum of $65, which sum, with interest, he was to pay on the first of November following. If he paid for the horse that sum, at that time, the horse was to belong to him; but until such payment was fully made the horse was to remain and continue the property of the plaintiff. Yandermark was to have the possession of the horse until the first day of November, but if he had not by that time paid for it, the plaintiff was authorized to resume the possession of it. The defendant recovered a judgment against Yandermark,'and issued an execution thereon, and by virtue thereof caused the. horse to be sold, in May, 1851, and with full knowledge of all the facts of the arrangement between Yandermark and the plaintiff, became the purchaser of the horse and took possession of it Yandermark thereupon sued the defendant in a Justice’s Court for taking said horse, claiming it was exempt from levy and sale on execution, and recovered judgment against him for the sum of sixty dollars, which the appellant paid. This was in September, 1851. Yandermark, not having paid the plaintiff the purchase money for said horse, on or before the said first day of November, the plaintiff demanded the horse of the defendant, who then had it in his possession, and on his refusal to deliver the same, this action was commenced in a Justice’s Court, and a recovery had against the defendant for the sum of $105. This judgment was reversed by the County Court, and, on appeal to the Supreme Court, that Court reversed the judgment of the County Court and affirmed that of the justice. • The appellant, by leave, appealed to this court.

      John H. Reynolds, for the appellant.

      Theodoric R. Westbrook, for the respondent.
   Davies, J.

It is impossible to distinguish this case from that of Herring v. Hoppock (15 N. Y., 409). The doctrine laid down in that case is decisive of the present. The arrangement there in all its essential features, was like that in this case. It was then held that wherever there is-a condition precedent attached to a contract of sale of personal property, and the condition is not waived by-an absolute and unconditional delivery, no title passes to the vendee until he performs .the condition or the holder waives it. In this case there was such a condition precedent, and the delivery of the horse to Vandermark was not absolute, and it follows that no title passed to him. . The sale, therefore, of the horse on the execution against Vandermark, and the purchase thereof by the appellant, transferred no title to the horse to him, for the reason that Vandermark had no such title as was subject to levy and sale on execution An absolute transfer by Vandermark to another having full knowledge of the character of his possession and of the arrangement with,the plaintiff, would have passed no title to the horse. At the extent, Vandermark’s assignee would have'Only acquired the rights which he had under the arrangement with the plaintiff, and if he did. not pay the price agreed on, on the day named, such assignee would have been bound to restore the possession of the horse to the plaintiff.

Heither did the appellant acquire' any title to the plaintiff’s horse by the recovery of the judgment against him by Vandermark, and his payment of that judgment. By the arrangement with the plaintiff, Vandermark was entitled to the use and possession of the horse, until the 1st of November, 1851. If the appellant'wrongfully disturbed that possession, and deprived Yandermark of such use,-unlawfully, he of course subjected himself to such damages as Yandermark sustained by reason of his wrongful acts. The recovery and-payment of such damages, in no way impaired or affected the plaintiff’s rights. The proceedings in that suit, were as to him res inter alios acta, and the circumstance that he was a witness on the trial, in no sense concluded him, by any determination made in the case, I see no reason for doubting the correctness of the judgment of the Supreme Court, and I am in favor of its affirmance with costs.

Marvin, J. Herring v. Hoppock (15 N. Y., 409), is an authority to show that the plaintiff, Hasbrouek, could maintain an action against the defendant after the first of November, Yandermark having failed to pay the price of the horse, but it is not authority to show that he could maintain the action at the time Yandermark sued Lounsbury. Hasbrouek, at that time, had no. right to the possession of the horse, and to maintain an action for conversion the plaintiff must have a general or special title, and must have the right to the immediate possession.

.What relation to the property did Yandermark sustain ? He had by his contract secured the absolute right to the possession and enjoyment of the horse until the 1st of November, and also the right of uniting the title with the possession, by paying the stipulated price. He had a special property in the horse, and this, I think, was sufficient to bring him within the provision of the exemption statute. (2 R. S., p. 367, § 23.) He owned the horse as a team, within the meaning of the statute. Hence, I think he had a cause of action against Lounsbury, not as a bailee of the horse, but as owner, needing it for a team, and his condition being such as the statute specifies. But suppose he had not been a householder, or had had another team, could he have maintained the action against Hasbrouek ? I suppose not. The judgment and execution would have been a complete bar as to him. He could, however, have maintained an action against a mere naked wrongdoer, upon his own interest and title. I apprehend, however, that he could not have maintained an action against Lounsbury upon the relation pimply of bailor and bailee, that is, simply upon the ground that he was the bailee of Hasbrouck. The execution would have been an answer to such action. I think no case can be found where a simple bailee of property has ever maintained an action against one who has taken the property from his possession on an execution against him. The judgment and execution would, in such a case, estop him, and the owner, the bailor, would be the only person who could maintain the action.

As I have already said, Yandermark’s action was well founded. It was sustainable upon the ground that he owned the horse as a team, and the statute forbade its sale on execution. What should have been the amount of his recovery is another question, which it is not necessary for us to consider in this case, though I may say that, in my opinion, he should only have recovered the value of his special property, which was first a right to the horse until the first of ¡November, and also a right to title absolute, on his paying $65. It is not . material in this case whether the verdict in that case was too large. But if it were material, how can we say that it was more than the value of Yandermark’s special property in the horse. The verdict was $60. In this action, commenced in December following, the verdict was $100. Yandermark, by his contract, had secured the right to the title on paying $65, and his interest in the horse may therefore have been $35, besides the value of the horse through the whole summer. But let us waive all this, and inquire as to.the relations between Hasbrouck and Yandermark. It is claimed that they were simply bailor and bailee, and that either of them could have maintained the action; I think I have shown that Hasbrouck could not maintain the action until after the first of ¡November, and not then, except upon a neglect to pay the stipulated price; and I have endeavored to show that Yandermark could not, as bailee, have maintained the action. In other words, if. he had simply been a bailee of the property he could not have maintained the action.

Did the relation of bailor and bailee exist between Hasbrouck and Vandermark ? The contract, in my opinion, established a relation between the parties quite different from that of bailor and bailee, or, in other words, there is an element in the case not to be found in that of bailor and bailee, to wit: a sale by Hasbrouck to Vandermark, condititionally.

The judgment of the'Supreme Court should be affirmed.

Denio, Ch. J., Wright and Selden, Js., concurred.

Balcom, J., (dissenting.)

The agreement between the plain- , tiff and Vandermark constituted the latter bailee of the horse at the time it was taken and converted by the defendant. Bailment is defined to be, “a delivery of a thing in trust for some special object or purpose, and upon a contract expressed or implied, to conform to the object or purpose of the trust.” (Story on Bailments, § 2.); Edwards says: “ The general rule seems to be, that the delivery of goods for use, keeping, or on some other trust, where the right of property in them does not pass, creates a bailment; the bailee it is true acquires a special property in them, sufficient to enable him to defend them against a stranger, but the right to a chose in'action remains hr the bailor.” (Edwards on Bailments, 34.)

The title to the horse was all the time in the' plaintiff; but Vandermark had possession of it under an agreement that he might use it, and become the owner of it by paying .the plaintiff a certain sum therefor by a specified time; which time had not arrived when the horse was taken and converted by the defendant, or when Vandermark brought his action. The bailment continued until Vandermark allowed the day to pass, he had for paying for the horse, without doing so.

The plaintiff could have sued the defendant for taking and converting the horse before, or at the time Vandermark brought his action. Judge Cowen says: “In general, where goods bailed, are converted by a stranger, either the bailor or bailee ■ may bring trover; but they cannot both have an action at the same time; and the one first bringing his action, determines the right of the other, who cannot then sue, and a recovery by one bars the other.” (1 Cowen Tr., 2d ed., 285; Smith v. James, 7 Cowen, 328; Greene v. Clarke, 2 Kern., 343.)

It seems to me’to be very plain that the recovery by Vandermark was a bar to the plaintiff’s action. The defendant was a stranger to the agreement, under which the plaintiff delivered the horse tp Vandermark; and it is not at all material that he undertook to justify the taking and conversion of the horse by virtue of an execution against Vandermark’s property, or that the latter recovered the value of the horse, on the ground tjiat it was exempt from levy and sale on execution, for the defendant had no more right to take and sell the horse on the execution, as"Vandermark’s property, than as the property of a third person; and the case is the same as it would have been, if the execution had been against the property of a stranger, who never had any interest in the horse. It is only when the defendant can successfully defend an action, brought by the 'bailee, that the bailor can sue notwithstanding the prior action by the bailee. When the bailee recovers, he holds the money recovered in trust for the bailor in lieu of the property.

Now as either the plaintiff or Vandermark had the right to sue the defendant for converting the borse, the judgment recovered by Vandermark was a bar to this action.

It would be very unjust to the defendant were the law otherwise ; for he "would be compelled to pay for the horse twice,. and be legally harassed with two actions, when he took and sold the horse in good faith, supposing it was the property of Vandermark, and liable to seizure on execution against his property. Fortunately for the defendant, the law does not dp him this wrong. For this reason, I am of the opinion the judgment of the Supreme Court should be reversed, and that of the County Court affirmed.

Emott and Rosekrans, Js., concurred in the conclusion arrived at by Balcom, J.

Judgment affirmed.