CORNELL 
 
 UNIVERSITY 
 LIBRARY 
 
 FROM 
 
 i'he College of Regional 
 History 
 
Cornell University Library 
 HD211.N7 R45 
 
 Review of the decision of tlie Court of a 
 
 olin 
 
 3 1924 032 661 963 
 
R El V^ I E ^^ 
 
 DECISION OF THE COURT OF APPEALS 
 
 DPON THE 
 
 MANOR QUESTION. 
 
 The within is a Review of two cases decided in the Court of Appeals 
 at March Term, 1859. Tliey , ^ 1^1} p . found r eported in 19 New York 
 Reports, by Smith, at pages 68 and 100. The legal profession is in- 
 vited to read the Review in connection with the Report. 
 
 ALBANY: 
 
 MUNSBLL & ROWLAND, 78 STATE STREET. 
 
 1859. 
 
The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924032661963 
 
**' . 'W 
 
 R E ^ IE ^ 
 
 -"St 
 
 OF THE 
 
 DECISION OF THE COURT OE APPEALS 
 
 UPON THE 
 
 MANOR QUESTION. 
 
 fM'i 
 
 ^(lo\Vvv. a.-<4 '^l^c^ViU- J 
 
 5' ^ ALBANY: 
 
 MUNSELL & EOWLAND, 18 STATE STREET. 
 *■ " 1859. 
 
 HO 
 
REVIEW. 
 
 VAN RENSSELAER vs. BALL. 
 Number I. 
 
 Court of Appeals have again decided 'that no feudal tenures exist in this, state — 
 Subinfeudation never permitted iu this state — Individuals might lease for life or 
 years, hut could not lease in fee — Something gained to popular rights by the 
 recent decision — The relations of landlord and tenant do not subsist between 
 the parties to this litigation — Court of Appeals adopts the position of the de- 
 fence, that the Van Rensselaer conveyances are not leases, but deeds of bargain 
 and sale, or assignments of a pre-existing tenancy — This result attributed to 
 the statute quia emptores — Van Rensselaer has no reversion or possibility of in- 
 terest left in the land — If feudal tenures do not exist, it is clear feudal laws can 
 not be applied ; and yet, judges labor to show, that immunity from the one, does 
 not secure immunity from the other ! which is a remarkable feature of the 
 decision — But the absurdity is obvious — If the decision be correct, the Legisla- 
 ture has abused the people — If not correct, the court has abused both the 
 Legislature and the people — In either case there is need of legislative action. 
 
 The Court of Appeals have again decided, that no feudal 
 tenures exist in this state, either of a manorial, or of a Idfes pre- 
 tending character. A similar decision was made in 1852, in the 
 De Peyster case. There is, however, this difference between 
 that case and the recent one. In the De Peyster case, the letters 
 patent were not before the court ; and the manor claimants in- 
 sisted, that though the decision was correct upon the facts as 
 presented, it would be different with the letters patent inteir- 
 posed. Consequently, in the above entitled case, the patent 
 was made, by stipulation of the parties, a part of the record, 
 in order that the plaintiff mig-ht have the benefit of any peculiar 
 rights to be derived therefrom. But this acquisition neverthe- 
 less failed to induce the court to change its opinion. It is again 
 
tion as after it became an independent state." — 19 JV. Y. Rep., 
 71-2. 
 
 Again, in treating of the same statute, the same judge says : 
 
 " The efiect of this important enactment was, that thenceforth 
 no new tenures of lands which had already been granted by the 
 sovereign, could be created. Every subsequent alienation placed 
 the feoffee in the same feudal relation which his feoffor before 
 occupied; that is, he held of the same superior lord by the same 
 services, and not of his feoffor. The system of tenures then 
 existing was left untouched, but the progress of expansion under 
 the practice of subinfeudation was arrested." — Id., 73. 
 
 He then enters upon an elaborate argument to show that the 
 statute quia emptores was not only the law of the state by the 
 special enactment of 1787, but had previously been the law of 
 the state and of the colony by the general adoption of the Eng- 
 lish laws. 
 
 Having proved that position to his entire satisfaction, he con- 
 cludes that part of his effort in the following unequivocal 
 language : 
 
 "Assuming tnis to have been so, our own law in the particular 
 under consideration is and has at all times, since the organiza- 
 tion of political society here, been the same as the law of Eng- 
 land. 
 
 " We are then to ascertain the effect of a conveyance in fee 
 reserving rent, upon the assumption that the statute of qida 
 emptores applies to such transactions. In the first place no rever- 
 sion, in the sense of the law of tenures is created in favor of the 
 grantor ; and as the right to distrain is incident to the reversion, 
 and without one it can not exist of common right, the relation 
 created by this conveyance, did not itself authorize a distress. 
 The rent in terms reserved was not a rent service." — Id., 76. 
 
 In the same case Judge Selden holds the same thing, in lan- 
 guage equally decisive. He labors to show that the effect of our 
 statute concerning tenures and escheats was even greater than 
 that of the English statute quia emptores in England ; " as it left 
 no class of landholders, who like the tenants in capite in England 
 were exempt from its operation. Even there this exemption was 
 taken away by the statute De Prerogativa Regis." 
 
 After farther elaborating that point, he says: 
 
 " It seems therefore entirely clear that the proprietors of 
 Manors in this state can claim no exemption from the operation 
 of the statutes concerning tenures and escheatsion the ground 
 that they are tenants in capite or chief lords."* ^ 
 
 In regard to the effect of the statutes, he says: 
 
 " After the statutes quia emptores and de prerogativa regis, no 
 reversion whatever was left in England in any grantor who con- 
 veyed an estate in fee simple absolute, except the king. On this 
 subject there seems to be no conflict of authority. The opera- 
 tion of our acts concerning tenures and escheats must be the 
 
same. Prior to these statutes the only reversionary interest left 
 in such a grantor was the remote chance of a reverter by escheat. 
 When, therefore, by the indirect effect of the English statutes, 
 and the more direct and explicit enactment of ours, the escheat 
 became vested, there in the king, and here in the people, not 
 even a possibility of reverter remained to any subsequent gran- 
 tors." 
 
 The argument of the judges upon that point is elaborate, and 
 their conclusion unqualified. They do not hesitate to declare 
 that no feudal tenures exist in the state; and that none could 
 have been created here previous to the statute of 1787, either 
 under the colonial or the state government. 
 Judge Denio, upon that point, says : 
 
 " A contrary theory would lead to the most absurd conclu- 
 sions. We should have to hold that the feudal system during 
 the whole colonial period and for the first ten years of state gov- 
 ernment, existed here in a condition of vigor which has been 
 unknown in England for more than three centuries before the 
 first settlement of this country. We should be obliged to re- 
 solve questions arising upon early conveyances, under which 
 many titles are still held, by the law which prevailed in England 
 during the first two centuries after the conquest, before the com- 
 mencement of the Year Books, and long before Littleton wrote 
 his Treatise upon Tenures." — Id., 74. 
 
 The " absurd conclusions " which Judge Denio so much depre- 
 cated, and which he labored to avoid, should be distinctly under- 
 stood. It will help to exhibit the true character of his subsequent 
 positions and reasoning. They were, that parties might hold lands 
 in fee as th(^,tenants of other individuals. Such a holding would 
 be feudal tenure. And feudal tenure would expose the parties 
 holding to ^udal laws so obnoxious that even England had cast 
 them off three centuries earlier than the settlement of this coun- 
 try. He was not willing to apply to the land^owners of this stat^ 
 laws which the people of the middle ages would not bear. The 
 application of the laws of that period to the present, after an 
 interval of so many centuries, Judge Denio and his associates 
 deprecated: Hence to avoid so undesirable an exigency, they 
 declared feudal tenures to have no legal existence in the state. 
 There could be no other rational purpose assigned. If true, that 
 feudal tenures existed, then no one could deny but that the one 
 party was a landlord and the other his tenant. Then feudal 
 laws, in all the vigor of the middle ages, would necessarily be in 
 full operation. If feudal tenures did not exist, it was equally 
 clear that feudal laws could not be applied. In that view the 
 opposing parties had labored, the one to show the existence, and 
 the other the non-existence, of feudal tenures. 
 The court has declared the non-existence. 
 But having so decided, the judges then labor to show that 
 
8 
 
 immunity from feudal tenures does not secure immunity from 
 feudal laws. 
 
 This is a remarkable feature of the decision. If feudal tenures 
 are not the indispensable foundation of feudal laws — if the latter 
 can exist without the former — why did the judges labor to dis- 
 prove the former? Why say anything about feudal tenures? 
 Why, was the statute quia emptores enacted in England, or re- 
 enacted here 1 Why wese feudal tenures expressly abolished by 
 our Eevised Statutes and in our Constitution of 1846 1 Will any 
 one deny that this legislation has all been had for the sole purpose 
 of avoiding the evils of feudal laws 1 Has any one before denied 
 its efficacy to fulfill the purpose 1 
 
 These are questions which the decision will force upon the 
 mind of every intelligent reader. No one will fail to perceive that 
 the decision utterly confounds all the laws of real estate. If the 
 relations of landlord and tenant, and of vendor and purchaser, are 
 subject to the same rules, then there is no practical difference 
 between them. The absurdity of such a position, in that view 
 alone, should have concluded the court against it. 
 
 There is no difficulty in understanding how the owner of lands 
 can lease them and at the same time affix terms and conditions 
 which may leave in him a despotic control over his tenants ; 
 for the property remains his. There is no difficulty in under- 
 standing how after leasing, the lessor may sell and thus the terms 
 and conditions of the lease pass to his vendee as incidents of the 
 land. There is no difficulty in understanding bow, on the other 
 hand, the assignee of the lessee, becomes equally subject to fulfill 
 the covenants and conditions of the lease; for they are equally 
 the price of his possession of lands the property of which is in 
 another. There is no difficulty in understanding, hdw thus one 
 set of parties may be placed under the despotic oontii|>l of others; 
 how such despotism may be more or less oppressive, just as parties 
 please by their contracts to make it, nor how it becomes so fast- 
 ened to the land that it may survive the parties who instituted 
 it. There is no difficulty in understanding that when leases are 
 made in fee the despotism thus created becomes perpetual. Such 
 was the mode whereby large landholders created manors and 
 baronies. Consequently had the court decided the deed to be a ■ 
 lease, the plaintifi' the owner of the reversion and the defendant 
 his tenant, as was the plaintiff's theory, then the laws prevailing 
 in England for "the first two centuries after the conquest," 
 would have applied and sustained the judgment. 
 
 But having decided the deed to be not a lease, but an assign- 
 ment, the plaintiff not the reversioner, but a stranger, the defend- 
 ant not the tenant, but the absolute owner, how then are they to 
 apply the laws prevailing in England for " the first two centuries 
 after the conquest 1 " 
 
 The absurdity of their position is obvious. They declare 
 
against leases to avoid the oppressive exactions peculiar to 
 landlord and tenant, and then declare that the vendor upon 
 alienation, just as well as the lessor on letting, can fasten terms 
 and conditions to which all subsequent owners must submit. To 
 give laws to a country; to create a despotism; an individual 
 need only buy and sell lands. Laws so made, can not, like the 
 laws of the Legislature, be repealed or altered. For example, 
 the slavery whereby one owed service to-another by the laws of 
 the state, has been abolished. The slavery provided by contract, 
 is declared to survive. 
 
 Such is the doctrine of the decision in this case, and its legiti- 
 mate consequences. It is admitted to have no precedent, but 
 declared to have been thrust upon the people by special enact- 
 ment of the legislature, years after the deeds relied upon were 
 made. 
 
 This much is certain : if the decision be correct, the Legisla- 
 ture has abused the people. If not correct, the court has abused 
 both the legislature and the people. In either case there is need 
 of Legislative action. If such statutes exist, they should be re- 
 pealed. If they do not exist, the Legislature has a double auty 
 to perform, namely : to rebuke the past, and provide against 
 the future. 
 
Number II. 
 
 Rules of law peculiar to relations of landlord and tenant — A reversion indispeusalDle 
 to the existence of a lease — Our system of estates the same as that of England — 
 Whoever liolds land in fee, holds of the sovereign power, and the state is his land- 
 lord — The state may lease in fee, individuals can not — Judge Selden lays down the 
 rule distinctly, that as no reversionary interest was left in V. Rensselaer, his.deeds 
 operated not as leases, but as mere assignments of a tenancy, in other words, they 
 were deeds of bargain and sale — The escheat and the fee simple together embrace 
 the whole legal title, and no intermediate estate can co-exist with them ; and, the 
 escheat being in the people, and the fee simple in the defendant, V. Rensselaer, was 
 of Moessity, a stranger to the land — The effect of the statute quia emptores clearly 
 stated by Denio and Selden — That statute put a stop, forever, to the practice of 
 subiafeudation, or leasing lands in fee ; that concession, legally, determined the 
 case before the court in favor of the defence. 
 
 In reviewing the decision of the court, it is necessary to bear 
 in mind, that the relations of landlord and tenant do not exist 
 between the parties. We have shown in the preceding number, 
 that question to be decided adversely to the plaintiff. It will 
 appear more conclusively, by considering, what is necessary to 
 constitute those relations, and how they can be constituted. 
 The rules of law peculiar to those relations, and their inapplica- 
 bility in the absence of those relations, will be then better under- 
 stood. 
 
 It should also be borne in mind as preliminary to the whole 
 question, that all ideas of property must necessarily be founded 
 upon rules of law. If property is to beheld at the will of judges, 
 civilized society, in that respect, can boast of but little, if any, 
 advantage over savage. Without fixed rules and a fixed adhe- 
 rence to rules, there would be no certainty or stability in personal 
 possessions, under the administration of the courts of civilized 
 society, more than under the wayward impulses and passions of 
 barbarians. Everything would degenerate to robbery ; and 
 robbery covered by ermine, would differ but little from robbery 
 in the guise of paint and wampum. The oracles of the law and 
 the war whoop of the savage would come to be regarded very 
 much alike. 
 
 Now what is necessary to constitute the relations of landlord 
 and tenant? What is a landlord, and what a tenant? Webster, 
 in his dictionary, defines a landlord to be the owner of land who 
 
11 
 
 has tenants under him ; and a tenant, to be one who has the 
 occupation or possession of lands or tenants, whose title is in 
 another. Other lexicographers give similar definitions. It is 
 easy to be seen that the terms landlord and tenant are correla- 
 tive ; that there must be two estates or interesfis in the same 
 premises; in the one, the proprietary, and in the other, the pos- 
 sessory right ; the latter held of and subordinate to the former. 
 
 It is not pretended that those relations can be created without 
 a lease. In Shephard's Touchstone, ch. 14, p. 266 ; it is 'said 
 that." a lease doth properly signify a demise or letting of lands, 
 rent, common or any hereditament, unto another for a lesser 
 time than he that doth let it hath in it." Archbold on Land, 
 and Ten., p. 2, says : "A lease is a contract in writing under seal, 
 whereby a person having a legal estate conveys a portion of his 
 interest to another, in consideration of a certain annual rent or 
 render, or other recompense ; if he convey the whole of his 
 interest, it is an assignment, not a lease, although by the deed 
 he reserve rent to himself, and the deed contain covenants which 
 were not in the original lease or conveyance to him." 
 
 Preston on Conveyancing, p. 124, has this language upon that 
 point : " It is now settled, that though the instrument imports to 
 be a lease, yet if it does in effect comprise all the estate which 
 resides in the grantor, it amounts to an assignment, and is not 
 an underlerse ; and a right of entry or reservation of rent, will 
 not change the nature of the estate." 
 
 The subject is discussed at length in 1 Piatt on Leases, pp. '9 
 to 18, and the English authorities are generally reviewed. The 
 author states his conclusions as follows: " Prom all which it 
 is not perhaps too much to conclude, that a reversion is essential 
 to a lease ; and under these circumstances I have not hesitated, 
 in the definition of a lease, to speak of a reversion as a condition 
 indispensable to its existence ; and we may also conclude, that 
 where all the grantor's estate is transferred, the instrument will 
 operate as an assignment, notwithstanding the reservation of a 
 rent to the grantor, or a right of re-entry on non-payment, or on 
 the non-performance by the grantee of covenants contained in 
 it, and although words of demise be used instead of words of 
 assignment." 
 
 Taylor in his work upon Landlord and Tenant, § 16, says : " It 
 
 is essential to a lease, also, that some revisionary interest be 
 
 left in the lessor ; for if he parts with his whole interest in the 
 
 ' premises, or makes a lease for a period exceeding his term, it 
 
 will, in either case, amount to an assignment." 
 
 The same doctrine is held in 2 Bl. Com., 317 ; 1 Hilliard on 
 Real Prop., ch. 15 ; and by authors upon that subject generally. 
 
 It is thus clear that the rule is well settled upon authority, 
 that to make a lease, there must be a reversionary interest in the 
 lessor; in other words, he must continue to be a tenant himself, 
 afterwards as before. Hence, it is self-evident that no person 
 
12 
 
 can make himself the lord of a tenant in fee, without being at 
 the same time the tenant of another estate in fee. There must 
 be subinfeudation. 
 
 The same rule must prevail here as in England, for it is ad- 
 mitted that our system of estates is the same. Judge Denio 
 says : " Our own law in the particular under consideration, is 
 and has at all times, since the organization of political society 
 here, been the same as the law of England." — 19 JV. Y. Rep., 76. 
 The same thing was declared in the De Peyster case. — 2 Selden, 
 505, 
 
 That system is one of landlords and tenants. "No man is, in 
 law, the absolute owner of lands. He can only hold an estate in 
 them." — Williams on Real Property, 16. 
 
 It is remarked by another English author that : " Whenever 
 we find a subject in possession of land, there the relation of ten- 
 ancy is in existence between him and somebody or other, since 
 according to the immutable rule of English law, no subject can 
 have what is called allodial property, that is, land held of no 
 body. Some one or other must be his superior lord, and if no 
 other person, then the sovereign, of whom all the landed pro- 
 perty in the realm in the possession of subjects is thus ultimately 
 held." — Smith's Landlord and Tenant, 2. 
 
 It is safe therefore to assume in regard to every individual in 
 the state holding lands, that he has a landlord. He holds either 
 of some other individual or of the state. If of an individual, 
 that individual must hold of somebody, and so on in all cases, 
 until the relations are traced to the state as the ultimate fountain. 
 Smith, in his Treatise just quoted from, says : " I say ultimately, 
 because, put the case that there are fifty intermediate landlords, 
 the last of them must himself hold of some person, and that person 
 must be the sovereign, inasmuch as there is no one else capable 
 of holding independently of any superior." 
 
 Substitute state for sovereign, and the rule is equally applicable 
 here. 
 
 It is therefore a proposition to which there is no exception, 
 that no one can be a landlord unless at the same time he be also 
 the tenant of somebody ; either of another individual or of the 
 state. For to be a landlord he must have the reversion, and a 
 reversion is but the right of possession held in abeyance, to 
 be enjoyed only when another existing right of possession of 
 younger date has terminated. To determine, therefore, whether 
 a party be the landlord of a certain tenant, it must be determined 
 whether he is the tenant of a certain landlord. If he be the 
 tenant of the next preceding tenancy, he has the reversion of 
 the next succeeding one ; otherwise not. 
 
 For example : A holds premises in fee and leases to B, for ten 
 years. B then leases to C for five years. C's right is an interest 
 in possession, and called an estate or term for years, B's right 
 is equally one of possession, but for present enjoyment expectant 
 
13 
 
 on C's estate, and therefore called a reversion. As between B 
 and C, the one is landlord, and the other his tenant. That, how- 
 ever, exhibits but one side of B's relations. B's interest, which 
 as to C is called the reversion, remains as to A, of whom he holds 
 an estate or tenancy ; and he continues the tenant of A, after his 
 lease to C, as well as before. A in his turn is also a tenant. The 
 reversion of his tenancy is in the state, and the state is therefore 
 his landlord, of whom he holds possession. 
 
 The last relation is of the same legal character as the others. 
 The state, as the reversioner, holds in regard to its tenants the 
 same legal position, as individual reversioners hold to their ten- 
 ants. The differences are only these : The state is the tenant 
 of no one, but has the absolute property. The state can also 
 lease in fee. Individuals can not. 
 
 All these are rules in which the Court of Appeals fully concur. 
 In accordance therewith, Selden, J., in his opinion, says, that 
 " It results from what has been previously said, that as no re- 
 versionary interest was left in the grantor, the deed in question 
 operated, not as a lease, but as a mere assignment of a tenancy." 
 
 The correctness of that conclusion, will not fail to appear 
 obvious, in the consideration of the modes of conveyance of real 
 property, sanctioned and adopted in the law. There are two 
 general classes of conveyances, namely: original or primary, and 
 derivative or secondary. The first is a deed of lease ; the second 
 a deed of assignment. The first creates a tenancy. The second 
 transfers one. The first creates or adds new relations of land- 
 lord and tenant. The second merely substitutes one tenant for 
 another.— 2 Bl. Com., 309 ; 4 Kent, 480. 
 
 That all deeds of lands are either deeds of lease or deeds of 
 assignment, is not open to dispute. Few men can be found so 
 ignorant and stupid, as to fail in understanding, that when they 
 part with the possession of their premises to some one else, they 
 either let or sell ; and if it be done by deed, that it is by a deed 
 of lease or by a deed of assignment. 
 
 In the case under discussion, the court found no difficulty in 
 determining the character of the deed. It was, in both form 
 and effect, a deed of bargain and sale. In 1796, one Stephen 
 Van Rensselaer had owned the premises in question in fee ; in 
 other words he had held them as a tenant in fee of the state. 
 He had sold and assigned that tenancy. He was a vendor and 
 his grantee a purchaser. The language of the deed was in no 
 wise different from ordinary deeds of sale, and could not be con- 
 strued a^^ lease without disregarding the plain meanihg of 
 words. In the De Peyster case, the granting part of the deed, 
 was in form a lease or demise, but it was decided to operate as 
 an assignment, because the statute was imperative in giving to 
 it that effect. In the case under discussion such was the effect 
 of the deed, not only because the statute, but because the parties 
 themselves had made it so. 
 
14 
 
 Thus the plaintifi''s theory of landlord and tenant was ex- 
 ploded. No subinfeudation existed in the premises. Prom the 
 owner, the grantor became a stranger to the land. He could 
 have no further interest therein, without first procuring a recon- 
 veyance to himself. 
 
 The court having thus settled the character and effect of the 
 deed, it is well said by Selden, J., in his opinion, "That when _a 
 tenant in fee simple conveys in fee simple, he parts with his 
 whole estate and retains no proprietor}' right whatever. There 
 is no room for any such right between the grantee to whom he 
 has transferred his tenancy and the lord. The escheat and the 
 fee simple together embrace the whole legal title, and no inter- 
 mediate estate can co-exist with them. Denio, J., expresses the 
 same thing in different language." — 19 JV". Y. Rep., 7 i to 73. 
 
 Judge Denio, in pointing out the difference between the com- 
 mon law and the statute — p. 72 — also says : 
 
 " In the early vigor of the feudal system, a tenant in fee could 
 not alienate the feud without the consent of his immediate 
 superior ; but this extreme rigor was soon afterwards relaxed, 
 and it was also avoided by the practice of subinfeudation, which 
 consisted in the tenant enfeofSng another to hold of himself by 
 fealty and such services as might be reserved by the act of feoff- 
 ment. Thus a new tenure was created upon every alienation ; 
 and thence there arose a series of lords of the same lands, the 
 first called the chief lords, holding immediately of the sove- 
 reign; the next grade of them; and so on each alienation creat- 
 ing another lord and another tenant." 
 
 Of the effect of the statute, he says : " The effe6t of this 
 important enactment was, that thenceforth no new tenure of 
 lands which had already been granted by the sovereign could be 
 created. Every subsequent alienation placed the feofiee in the 
 same feudal relation which his feoffor before occupied ; that is, 
 he held of the same superior lord, by the same services, and not 
 of his feoflbr. The system of tenures then existing was left 
 untouched, but the progress of expansion under the practice of 
 subinfeudation was arrested." — Id., 73. 
 
 It is thus evident, that in law as well as in common under- 
 standing, to be a landlord a person must be the owner of lands 
 with tenants under him. And it is equally clear and well settled, 
 that in the case under discussion, and all others of like charac- 
 ter, founded upon deeds in fee, the claimant is not a landlord, 
 because he has no interest in the premises. Judge Denio, in 
 spite of his manifest disposition to sustain his " pai|-oons," is 
 constrained to say, in regard to conveyances in fee like the one 
 in question, " I concede that there can be no reversion." 
 
 This was only a concession in another form, that there was no 
 subinfeudation; in other words, that the maker of the deed did 
 not retain his relations of tenant to the state, and did not there- 
 fore make himself the lord of his grantee. 
 
Number III. 
 
 The ease of Van Rensselaer agt. Ball was ejectment — Had the deed been an act of 
 subinfeudation, or, in other words, a lease in fee, plaintiff would have heen the 
 reversioner and the defendant, the tenant, and the action maintainable ; on no 
 other theory could it have been supported ; but the deed was an act of bargain and 
 not of lease — No person can recover in ejectment unless he has, at the time of 
 commencing the action, a valid, subsisting interest in the preinises claimed — 
 Case in point stated, De Peyster v. Michael, 2 Seld., 467 — That case decisive of 
 this — Rules and principles of the feudal system defined — The positions of defend- 
 ant's counsel unanswered by the court — The point that plaintiff did not own the 
 reversion, being decided against him, action could not be maintained without a 
 violation of the law — Defendant decided to own the farm and plaintiff to have 
 no interest in it ; yet, the court gave judgment that plaintiff shall have possession — 
 "Will it be pretended that authority is vested in the court to take property from 
 one and give it to another ? — That was not allowed in the case of intoxicating 
 liqiiors ; will it be in that of lands ? — Why the discrimination ? 
 
 In the preceding numbers, we have followed the judicial 
 argument far enough to learn, that, by the decision of the court, 
 the plaintiff had no interest in the land, and the defendant held 
 an estate in fee directly of the state, and was therefore as to 
 every other individual in the world, the absolute owner of the 
 land. 
 
 Such being the position of the parties in regard to the land 
 and to each other, the plaintiff brought an action of ejectment, 
 claiming judgment that the defendant be put out of possession, 
 and that he, the plaintiff, be put in. 
 
 Now had the deed been an act of subinfeudation, in other 
 words, a lease in fee, the plaintiff would have been the reversioner 
 of the tenancy in fee held by the defendant. There would have 
 been t.wo estates or tenancies in fee, each with its landlord and 
 tenant. Of the first, the state would have been the landlord, and 
 the plaintiff, the tenant. Of the second, the plaintiff, the land- 
 lord, and the defendant, the tenant. The laws of landlord and 
 tenant would have applied and the action been sustained. Such 
 has always been the theory of like cases. But the court decide 
 that subinfeudation does not exist ; our statutes do not permit 
 it. That spoiled the plaintiff's theory and his action. 
 
 Then follows the extraordinary effort to sustain the action 
 
16 
 
 without the theory. Its true character does not appear in the 
 official report, because the points of counsel are not given. 
 
 The first point was as follows : 
 
 " No person can recover in ejectment unless he has, at the time 
 of commencing the action, a valid, subsisting interest in the pre- 
 mises claimed, and a right to recover the same, or to recover 
 possession thereof. 
 
 This is the language of the statute. 2 E. S., 303, § 3. It did 
 not change the rule, but was only declaratory of the common 
 law. 
 
 Under the common law form of the action, the plaintiff was 
 bound to make out a good title in his lessor. — 2 Bl. Com., 202. 
 
 In Jackson ex dem., Starr and wife against Richmond, 4 John. 
 R., 483, it was held that in ejectment, a person who has no claim 
 or subsisting title to the premises in question, will not be allowed 
 to be made a lessor. The same rule was held in Jackson ex dem., 
 &c., against Selover, 10 John., 368. 
 
 See also to the same effect. Doe ex dem., &c., against Butler, 
 3 Wend., 149 ; Jackson ex dem., &c., against Poster, 12 John. 488. 
 
 While the Revised Statutes require that the action shall be 
 prosecuted in the name of the real claimants, they provide that 
 " all the provisions of law concerning lessors of a plaintiff, shall 
 apply to such plaintiffs." — 2 R. S., 304, § 5. 
 
 It has never been denied, that in ejectment the plaintiff must 
 first prove title or property in the premises ; and second, he must 
 show it to be a title or property, which gives him a right to the 
 possession of the premises.' In other words, he must show him- 
 self to have an estate, and also a right to the possession of that 
 estate ; obviously, the right of property in one estate, can give 
 no right of possession to another estate. There is no principle 
 of the common law, whereby one party can recover possession 
 of another party's property. Title must precede possession. — 
 1 Bl. Com., 139. 
 
 The constitution and laws of this state are still more particu- 
 lar and stringent in vindicating the rights of property ; and they 
 extend to estates which individuals may hold in lands, as well 
 as to personal property." 
 
 No one will fail to perceive that this was a very important 
 point, presenting itself at the threshold of this action. Its 
 correctness is not disputed by the. court, nor was any answer 
 attempted by counsel on the argument. Judge Denio could find 
 no way either to meet or to avoid it. 
 
 The first point was followed by a second, as follows : 
 
 " Ejectment by a landlord against his tenant, carries with it 
 no exceptions to the foregoing principles. The plaintiff" is re- 
 quired to make out the same two points, to wit : 1, his right of 
 property ; and 2, his right to the possession of that property. 
 
 He must allege and prove the creation, at some previous time, 
 of an estate or tenancy, the reversion of which was left in the 
 
17 
 
 party creating that estate or tenancy. If the plaintiff be not the 
 party who created the tenancy, he must allege and prove that 
 the reversion of that tenancy, at some time previous to the com- 
 mencement of this action, has, by some mode of conveyance 
 become vested in him, as the grantee, devisee or inheritor there- 
 of. When he has shown this, he has made out his right of pro- 
 perty, the first point of his case. 
 
 Before he can recover, he has, however, to make out his se- 
 cond point; that is, his right to the possession of that reversion. 
 To do thatj he must show that the tenancy has ceased to exist, 
 either by its own limitation, or by the violation of some condition, 
 attached to it at the time of its creation, whereby the reversioner 
 could terminate it, or whereby it became absolutely void inde- 
 pendently of the volition of the reversioner. The second point 
 can be made out in no other way. So long as the tenancy exists, 
 the owner thereof has a right to th6 possession of the premises, 
 of which he can not be deprived any more than he can be de- 
 prived of his horse, or other property. 
 
 There is a case in point, which fully illustrates the foregoing 
 propositions, and authoritatively settles all the questions con- 
 nected therewith. — Be Peyster v. Michael, 2 Selden, 467. 
 
 It was an action of ejectment. The plaintiff therein, to make 
 out his first point, alleged a tenancy, created in 1785 ; and that 
 he was the grantee of the reversion of that tenancy, before 
 the commencement of his action, and before the alleged rents 
 accrued. 
 
 To prove that part of his case, he put in evidence a deed in 
 fee, of the date of 1785, from one Van Rensselaer to one Snyder. 
 The deed was in form a lease. It purported to create an estate 
 or tenancy in fee. It was insisted on the part of the plaintiff 
 that it did create such estate, and therefore left the reversion or 
 escheat in Van Rensselaer, the grantor of the deed ; which, if 
 left in Van Rensselaer, had been transferred to plaintiff. 
 
 It was urged that the plaintiff had thus made out title or estate 
 in the premises. 
 
 The second point, to wit : the right to the possession of the 
 reversion, was claimed on the ground, that certain covenants 
 and conditions were named in the deed, as annexed to the ten- 
 ancy of Snyder, to be fulfilled by him and his assigns ; that after 
 that estate had vested in the defendant Michael, he had neglected 
 to fulfill one of those conditions, and, by such neglect the fee or 
 tenancy had ceased to exist ; and therefore the plaintiff, as the 
 owner of the reversion, acquired the right to the possession of 
 the premises. 
 
 The plaintiff was defeated in his action, upon the ground, that 
 Van Rensselaer's deed to Snyder did not create an estate or 
 tenancy, but was only, in effect, an assignment or transfer of a 
 pre-existing estate or tenancy ; and did not therefore leave a 
 reversion in Van Rensselaer, the grantor. In other worda, that 
 2 
 
18 
 
 the deed operated as an alienation and not as a subinfeudation. 
 Van Rensselaer having had no reversion on executing his deed 
 to Snyder, the plaintiff, De Peyster, could not be the grantee of 
 the reversion; and did not make out his first point. He failed 
 to recover, because he failed to prove any right of property in 
 the premises. It was conceded by the court, that had the deed 
 from Van Rensselaer to Snyder created an estate in fee, leaving 
 the reversion in Van Rensselaer, as would have been the effect 
 under the feudal law, the action could have been maintained. 
 But the deed being merely an assignment, or alienation, and leav- 
 ing no reversion, there was no right of action in the plaintiff'. 
 
 The decision of the first point, was also decisive of the second. 
 Van Rensselaer having only assigned a tenancy, could impose no 
 covenants to run with, it, or conditions to operate upon it. In 
 any view he could not be helped by the conditions. If it were 
 possible for them to destroy the fee or tenancy, the state, as the 
 reversioner, and not the plaintiff', was entitled to the possession 
 of the premises." 
 
 The third point was as follows : 
 
 The case of De Peyster v. Michael is decisive of this case. 
 The question there was — Did the plaintiff own the reversion ? 
 The question here is the same. The character of the conditions 
 is not materially different. They might be operative in either 
 case, as between the reversioner and his tenant. But as that 
 relation did not, in either case, exist, the conditions were alike 
 inoperative in each. In each case, the plaintiffs did, or did not, 
 own the reversion. If they did not own the reversion when 
 seeking possession for the violation of one condition, they did 
 not of course own the reversion, when trying to get possession 
 for the violation of another condition. 
 
 The De Peyster case is decisive of this point, because it de- 
 cides the following questions : 
 
 1. That the feudal law permitting tenants in fee to create 
 tenancies in fee, in other words, to make leases in fee, was not 
 in force in this state after the institution of our state govern- 
 ment in 1776. 
 
 2. That the statute quia empfores was substantially in force 
 here from that date, as embodied in the first section of the act 
 concerning tenures of 1787 ; and that that statute and a previ- 
 ous statute of 1779, vesting in the state the escheat of all the 
 lands within its territory, " put an end to all feudal tenure 
 between one citizen and another, and substituted in its place a 
 tenure between each landholder and the people in their sovereign 
 capacity." 
 
 These statutes disposed of all rents nominally reserved in 
 deeds in fee made after the statutes took effect. No such thing 
 as rent could be reserved except as an incident of the reversion, 
 and connected with tenure. Feudal rents could not exist unless 
 connected with feudal tenures, and incident to the reversion left 
 in a lessor in fee. The court, therefore, by deciding that tenure 
 
19 
 
 could not be created between an individual grantor and his 
 grantee of a deed in fee, and that no reversion could be left in 
 such grantor, in effect also decided, that rent could not be 
 reserved, nor exist between an individual grantor and his 
 grantee of such a deed. 
 
 ' The foregoing propositions have never been questioned by 
 any one familiar with the feudal system and the eflect produced 
 by the statute quia eimptores, and, who has known the difference 
 between a deed, made as a lease in fee and operating as such, 
 under the feudal law, and a deed in fee intended as evidence of 
 a sale and assignment, and operating as such, under the statute. 
 
 A complete understanding of the questions, requires the con- 
 sideration of some of the leading rules of the feudal law, as 
 they existed before the statute quia emptores, and as they exist 
 modified by that statute. 
 
 Before noticing the argument of the court as made by Judge 
 Denio, it may be proper to notice the fourth point as presented 
 to the court on the argument. Therein are contained the main 
 features of the feudal law, no one of which is denied by the 
 court. That point was in the following language : 
 
 The feudal system was made up of general and well defined 
 rules and principles. These, so far as involved in the question 
 discussed here, were as follows: 
 
 1. Individuals were not the absolute owners of lands. The 
 sovereign, in his representative capacity, was the owner of all 
 the lands within his territory. 
 
 2. Individuals could hold only estates in lands. Those estates 
 were either tenancies, or the reversions of tenancies. 
 
 Every tenancy had its immediate reversion. The creation of 
 every estate or tenancy resulted in leaving an estate in rever- 
 sion in the party who created the tenancy. 
 
 Unless such was the result, no new estate or tenancy was 
 created. The only eflect then was to transfer or assign a pre- 
 existing estate or tenancy. — 1 L. Raymond, 99. 
 
 3. Every party on creating an estate or tenancy, parted with 
 nothing but the right of possession. The right of property con- 
 tinued in him. The right of property was called the reversion. 
 
 The largest estate which could be created in that way, was a 
 fee ; and a fee was as strictly a mere tenancy as an estate for life 
 or for years, the reversion of which remained in the party creat- 
 ing the estate. 
 
 4. The owner of every tenancy, could create another tenancy 
 to be held of himself. Of the tenancy so created he became the 
 lord, and as to that tenancy had the right of property ; in other 
 words, held the reversion. He thus added to the premises a new 
 landlord and a new tenant. But as before remarked, the estate 
 or tenancy in each case, must be for a less quantity than the 
 estate or tenancy held by the party attempting the new creation ; 
 otherwise, his attempt would operate as an assi^npient of his 
 
20 
 
 tenancy, ancj not as the creation of a new estate. But every 
 tenant in fee could create another tenancy in fee. In other 
 words, every tenant in fee could make himself lord of a fee, by 
 creating and vesting a new estate of that kind in some party who 
 would thus become his tenant. The escheat always remained 
 in the lessor, known as the possibility of reverter, and was a 
 reversion sufficient to support the tenancy. Tenancies in fee 
 could, therefore, be multiplied to an unlimited extent. Each one 
 added a new landlord and a new tenant to the premises. In that 
 respect, there was a marked difference between alienation and 
 subinfeudation. Alienation merely substituted one tenant for 
 another. Subinfeudation added another tenant and another lord. 
 
 5. A party creating an estate or tenancy could at the time of 
 its creation, reserve repots and services, and fasten them as bur- 
 dens on the estate created. Covenants and conditions, as of 
 forfeiture, of re-entry, or any other kind concerning the pre- 
 mises, and not illegal between the parties, could, at the time of 
 the creation of the estate or tenancy, be attached thereto. Co- 
 venants could also at the same time be attached to the rever- 
 sion in favor of the tenant ; as for example, covenants of war- 
 ranty and quiet enjoyment. Thus covenants became attached 
 to the two estates, the reversion and tenancy ; each covenant to 
 one estate as a burden, and to the other as a benefit. 
 
 Whoever became the owner of the estates, became liable to 
 fulfill the covenants imposed as burdens upon the estate he 
 owned, and entitled to exact the fulfillment of those which were 
 affixed as benefits. Covenants which run with the land, so as to 
 bind the owner, run with it in a two-fold manner; with one 
 estate as a benefit, and with the other as a burden. The owners 
 of these two estates, held to each other the relation of lord and 
 tenant. 
 
 In no other manner and in no other relations, could covenants 
 be imposed as burdens to run with the land. 
 
 6. When the owner of an estate in fee, or of any other teur 
 aincy, aliened and assigned his tenancy, he could affix neither 
 covenants nor conditions to the premises sold, either in his own 
 favor, or in favor of any one else. He was merely a vendor, and 
 could not make himself a lessor. His assignee was his vendee, 
 and could not be made his tenant. The assignee became the 
 tenant of the same lord, of whom the vendor had held. 
 
 7. The owner of every estate or tenancy, as to every party 
 except his reversioner, had, in his estate or tenancy, the absolute 
 property. As to his reversioner, he had only the right of pos- 
 session. Consequently, the tenant in fee, who held immedialely 
 of the sovereign, was the absolute owner of the lands as to every 
 other individual in the kingdom. 
 
 Such were some of the rules of the feudal law, in England as 
 they existed previous to 1290. Then that law was modified' by 
 the statute quia emptores. 
 
21 
 
 The reader will perceive as we progress in this discussion 
 that the foregoing positions of the defendant's counsel remain 
 unanswered by the court. No one will dare say that they are 
 immaterial. It is clear that they remain unanswered because 
 they are unanswerable. The only point open to dispute, was 
 whether the plaintiff owned the reversion of the fee which he 
 admitted to be in the defendant. That point being decided 
 against the plaintiff, his action could not be maintained without 
 an obvious violation of the law. The defendant owned the farm ; 
 the plaintiff did not. It will hardly be contended, that one party 
 can legally acquire possession of atiother party's property; or 
 that the one can be divested and the other invested with the title 
 thereof. It is not uncommon for parties to institute judicial 
 probeedings to acquire possession of their oWn, but who has 
 heard of such proceedings to acquire another's? Who has ever 
 heard of an action brought to acquire the title to property ? Or 
 the transfer of title by judicial fiat 1 
 
 Absurd as such a proceeding would be, the case under discuss^ 
 ion is of that character. The defendant is decided to own the 
 farm. The plaintiff is held to have no property or interest in 
 it; yet the court gave judgment that the plaintiff shall have 
 possession, and the defendant shall not. 
 
 It requires no argument td prove that the judges contemplated 
 the accomplishment of one of two things. They either under- 
 took to give the plaintiff, without title, the possession of the' 
 defendant's property, or to take from the defendant both title' 
 and possession in order to bestow both upon' the plaintiff. There 
 is no escape for them' from this position; for, while it is con- 
 ceded that the defendant owned the estate in fee, it is held that 
 the plaintiff had no estate or interest in the premises. 
 
 Now, will it be pretended that authority is vested in the court 
 to" take property from one and give it to another 1 The outrage 
 upon law, and upon individual rights, whould have been no 
 greater had the plaintiff" been favored with a judgment to take 
 the defendant's life. In the language of Judge Conistock in the 
 Prohibitory Liquor Law cases: "Property is placed by the Con- 
 stitution, in the same category with liberty and life." They 
 declared a statute void which undertook to take from men in- 
 toxicating liquors, because such liquors were property. They 
 torture the statutes to find power to take from men their lands. 
 Why this discrimination ? Is property in lands less sacred, than 
 property in intoxicating liquors ? 
 
NtTMBEB IV. 
 
 Direct effects produced by statute quia emptores — Its ulterior or consequential 
 effect — Admitted by Judges Denio and Selden — Covenants run with land only 
 where there are two estates — Absurdity of an attempted exception — Judge 
 Denio's entire misapprehension of the points and ai-gument of defendant's counsel 
 — No party can impose conditions unless he creates the estate ; and as the estate 
 or fee in this case was created by the state, and not by Van Rensselaer, the con- 
 ditions attempted by him, were void — The point presented to the court, and not 
 passed upon, was, whether a tenant of an estate, upon alienation or assignment, 
 can annex conditions to defeat it — It is clear that Judge Denio has read the case 
 of De Peyster v. Michael to little purpose, for he utterly misapprehends it. 
 
 Besides the first four, there were other points made by the 
 defendant's counsel on the argument, which have passed un- 
 noticed in Judge Denio's opinion. Not only so, but while he 
 has omitted the points which were discussed by counsel, he 
 has assumed and discussed points of his own, not taken by 
 counsel, and about which there were no differences of opinion. 
 These judicial positions are so taken and argued, that the reader 
 would naturally suppose, that he was really in the midst of the 
 defendant's objections and a witness to their easy demolition. 
 He can not learn the contrary from the official reports, for the 
 points of counsel are there omitted. Judge Denio's effort can 
 not, therefore, be properly estimated, nor its true character justly 
 appreciated, without knowing still more of the real obstacles in 
 the way of the plaintiff's action as urged upon the court during 
 the argument. Read as presented by the official reporter, the 
 intelligent reader could hardly fail to regard the case as very 
 badly decided ; but he might find an excuse, that it was very 
 badly argued; as it really would have been, had the line of 
 argument been as assumed in the opinion. Justice to the subject 
 consequently requires further notice of the positions taken by 
 the defence, before entering upon the details of Judge Denio's 
 argument. 
 
 There were two other points, which, in their scope, involved 
 the whole question, only in another form from that already pre- 
 sented. They were as follows : 
 
 The statute quia emptores produced two direct effects. 
 
 1. It gave to owners of estates or tenancies in fee, an unlimited, 
 unrestricted right of alienation of those estates. 
 
23 
 
 2. It made it impossible for them to create estates or tenancies 
 in fee, by declaring that every lease of that kind should operate 
 as an alienation, and not as a subinfeudation. 
 
 These are effects which have never been questioned. Tenants 
 in fee were allowed to bargain and sell their premises at pleasure. 
 They could lease for years or for lives, after the statute, the 
 same as before. But they could not lease in fee. They might 
 make an indenture in the form of a lease in fee, as Van Rensse- 
 laer did to Snyder in the De Peyster case, but the statute con- 
 trolled its character, and made it a mere bargain and sale ; an 
 assignment of an estate or tenancy, and not. the creation of a 
 new one. 
 
 The statute quia emptores changed no other rule of the feudal 
 law. It merely made it impossible for individuals to create one 
 class of tenancies, to wit : tenancies in fee. 
 
 It is not difficult to perceive that the direct effects, apart from 
 consequential effects, were of no practical importance. It made 
 no difference of whom a fee was held, whether of the sovereign 
 or of some individual, so far as the owner was concerned. It 
 could revert only upon his decease leaving no heirs, to whom it 
 would descend, and no testamentary disposition. Such cases 
 are too unfrequent to be of much consequence to other parties. 
 No such considerations induced the enactment of the statute, or 
 formed any part of the moving cause. 
 
 The direct effects of the statutes are conceded by the court as 
 broadly as claimed by the defendant. 
 
 As to ulterior effects, the defendant made the following point: 
 
 The statute quia emptores, produced an ulterior or consequential 
 effect. It prevented lands from becoming perpetually burdened 
 with covenants and conditions. This was the purpose sought by 
 its enactment. The causes which led to it are abundant evi- 
 dence of that' fact. Leases in fee upon the same premises had 
 been multiplied to such an extent, and were so continually in-' 
 creasing in number, each with its landlord and tenant, and each 
 with its rents and other burdens, that the produce of the land 
 was insufficient to support all who were thus made dependent. 
 The evil was increasing. Every new lease added to the number 
 of the consumers without increasing the productions. The inferior 
 or intermediate lords wereunable to pay their rents to the supe- 
 rior lords. This was one of the most prominent and radical evils . 
 which resulted from the feudal system. After other ineffectual 
 efforts to remedy these results, the statute quia emptores was 
 enacted. This was as radical as the evils complained of. By 
 preventing the creation of any more estates in fee, they pre- 
 vented the lands from being burdened with any more covenants 
 or conditions in perpetuity. All disadvantages which might 
 follow from this restriction upon commerce in lands, were fully 
 compensated by allowing a right of alienation at pleasure. In 
 plain English, the language of the statute to individual tenants 
 
24' 
 
 of estates in fee, was : " You may sell and assign your estates as 
 you please ; but you can not lease in fee. Every attempt you 
 make of the latter character, is hereby declared to fail of its 
 designed effect ; and, further, it shall operate as a bargain and 
 sale of all your estate. You shall be a vendor, and the party 
 whom you undertake to make a lessee, shall be a vendee, in 
 spite of any conventional arrangement between you." 
 
 The reason of the statute was, as hereinbefore shown, that 
 when a party leased in fee, as when he leased for life, he created 
 a new estate, the reversion of which was left in himself. To a 
 tenancy in fee of his own creation, as to a tenancy for life, he 
 could attach covenants and conditions. But when he merely 
 sold and assigned his estate or tenancy in fee, he could attach 
 neither covenants nor conditions to it, any more than though he 
 had owned an estate for life, and made an assignment of it. A 
 different rule would confound all distinction between a deed of 
 lease to a tenant, and a deed of assignment by a tenant ; and the 
 confusion would be none the less, applied to estates in fee than 
 applied to estates for life. See 2 Brougham's Political Philoso- 
 phy, 279 ; 2 Reeves' History of Eng. Law, 223. Dalrymple on 
 Feudal Prop., 105 ; 1 Buckle's Hist. Civz. of England, 448 ; 
 Wright's Tenures, 159; Chamber's Land, and Ten., 2, 3; Smith's. 
 Land, and Ten., 90. 
 
 The opinions of the judges will be searched in vain for any 
 direct attempt to controvert the correctness of this point, or 
 any of the positions connected with it. On the contrary, it is 
 expressly admitted to be correct as a general rule. Judge Sel- 
 den says : "As a general rule covenants run with land only 
 where there are two estates, with one of which, the covenant 
 runs as a benefit, and with the pther as a burden." 
 
 The consequential results which were sought by the statute, 
 are admitted by Judge Denio in language still more expressive. 
 In speaking of the statute quia empiores and its direct as well as 
 ulterior effects, he says, in language already quoted : "A con- 
 trary theory would lead to the most absurd conclusions. We 
 should be obliged to resolve questions arising upon early convey- 
 ances, under which many titles are still held, by the law which' 
 prevailed in England during the first two centuries after the 
 conquest." 
 
 What qnestions and what la-« did he here refer to 1 Obviously 
 such as the case before him presented ; whether parties holding 
 lands in fee, held upon condition of performing menial services, 
 and furnishing, at certain stated periods, to certain individuals, 
 a certain number of fat hens and a certain number of bushels of 
 wheat, under penalty of losing their lands. Such are clearly the 
 absurd results to which he truly says " a contrary theory would 
 lead;" and for which no precedent could be found without 
 going back to the remote period which he named. 
 
 Of the same point and of the authorities cited to support it, 
 
25 
 
 Judge! Selden further aay 8' : they "are to be laid aside, becausei 
 that is not in dispute. The question relates solely to an excep- 
 tion." And Judge Denio- labors to sustain, the judgment, not as 
 being sustainable under the general rule, but under an exception 
 to that general rule. 
 
 It is remarkable that it did not occur to either of the learned 
 judges,, that in sustaining the action of covenant as an exception 
 to the general rule, they were guilty of the absurdity of creating 
 an exception as broad as the rule itself. 
 
 It is due, however, to Judge Selden,. to say, that he refused 
 to allow the ejectment case to come withia the exception; 
 for what reason does not, appear. His argument in favor of 
 the covenant action will be more particularly considered; in 
 another connection. At present the ejectment case and Judge 
 Denio's opinion in its support, are the subjects of examination. 
 
 He begins, his argument, with this general proposition : "A. 
 condition annexed to a conveyance in fee, that the grantee, his 
 heirs and assigns shall pay to the grantor and his^heirs an annual 
 rent, and that in default of payment, the grantor or his heirs 
 may re-enter, is a lawful condition." 
 
 If Judge Denio supposed that to be the question, or one of 
 the questions presented to the court, he' has- read the pointsand 
 listened to the argument of counsel very stupidly, and to very 
 little purpose. The question was- not whether the condition 
 was of itself legal or illegali, but when and by whom can condi- 
 tions be annexed. There was no excuse for misunderstanding_ 
 the defendant's counsel upon this point. It was presented in 
 the printed points in the following language : 
 
 It is clear that the judgment can not be sustained upon the 
 ground, that the estate conveyed, was an estate upon condition. 
 In that case, to be effectual, the condition must, operate either 
 so as to put an end to the estate itself, or so as to transfer it 
 from the defendant to the plaintiff. It will be found impossible 
 to make it do either, according to the rules of law as heretofore 
 established. 
 
 There are hut two ways of voluntary conveyance of real 
 estate, from one individual to another. 
 First. By creating a tenancy. 
 
 Second.. By assigning a tenancy. — 2 Bl. Com., 309, 310. 
 The first is done by making a deed of lease. The second, by 
 making a deed of sale and assignment. 
 
 The party who creates a tenancy, can make it an estate upon 
 condition, provided he makes the conditions in his own favor. 
 
 The party who sells and assigns his tenancy, can not change 
 its character by either adding or abstracting conditions. 
 
 The feudal or common law was adverse to forfeitures and' 
 conditions, except upon tenancies in favor of the reversioners. 
 Individual rights of property were sci'upulously protected from 
 forfeitures and other conditions. The case of a tenancy is not 
 
26 
 
 an exception, but an exemplifieation of that rule. Conditions 
 are allowed in such cases, for the protection of the owner of 
 the premises during the time the possession is out of him. Here- 
 in can be found the reason why the condition must be in favor 
 of the party who creates the estate and imposes the conditions. 
 
 It is indisputably settled by authority, that conditions can not 
 be annexed to an estate, except at the time of its creation, as 
 stated under Point IV, in regard to the feudal laws. 
 
 The rule extends to estates in fee, as well as for life or years. 
 
 In 2 Cruise Dig., 3, § 9, is the following : 
 
 "A condition in deed may be annexed to every species of 
 estate and interest in real property ; to an estate in fee, in tail, 
 for life or years, in any lands or tenements." 
 
 Sec. 10 : "As to things executed, a condition must be created 
 and annexed to the estate at the time of the making of it, not at 
 any time after. Therefore, where a condition is made in a sepa- 
 rate deed, it must be sealed and delivered at the same time with 
 the principal deed." 
 
 To the same effect, see Shep. Touch., 126 ; Bacon's Ab. Con- 
 dition, C. ; 2 Bl. Com., 151, n. 2; Smith on Real and Personal 
 Prop., 69 ; Taylor's Land, and Ten., § 280. 
 
 The deed in this case, containing the conditions, being a deed 
 not creating the estate, but merely transferring it, it follows, of 
 course, that the conditions are inoperative and void. 
 
 It is plain, that the counsel for the defense did not take the 
 position which Judge Denio assumes, but the contrary. The 
 point was, that Van Rensselaer did not make the estate. It 
 existed before he made the deed in question. He only sold and 
 assigned the estate. He could not therefore change its charac- 
 ter by annexing conditions to it. 
 
 It is worthy of remark, that while the court admit that Van 
 Rensselaer did not create the estate, but only assigned it, the 
 conclusion that he could not therefore annex the condition, is no 
 ■where denied. This was the chief point ; whether a tenant of 
 an estate could annex conditions to defeat it, upon alienation or 
 assignment; whether there was any difference in that respect 
 between a lease and an assignment. This is no where decided 
 To this omission, the attention of those parties, who claim for 
 the decision a finality in all similar cases, is particularly invited. 
 The proposition with which Judge Denio starts his argument, 
 was not disputed. No one denies but that a party who leases in 
 fee, as well as for life or years, can annex conditions to the 
 estate so created. It was because he could do so, that the 
 statutes were enacted, forbidding such leases. How then is any 
 point decided, by the reiteration of a proposition found in the 
 text books and which no one ever denied, while the chief point 
 in dispute is unnoticed 1 
 
 It is equally clear that Judge Denio has read the case of De 
 
27 
 
 Peyster v. Michael to as little purpose as he listened to the argu- 
 ment of the one under discussion. He says of that case : 
 
 " The argument in the opinion of the Chief Judge, in De Peys- 
 ter V. Michael, consisted in showing that a condition for the 
 payment of one quarter part of the value of the land and im- 
 provements upon each sale bj"^ the grantee, or those who should 
 succeed to his estate, was a restraint upon alienation repugnant 
 to the nature of a fee simple, within the sense of the author- 
 ities." 
 
 The court in that case have left no place for doubt, in regard 
 to what they meant to decide. They reduced their decision to 
 the form of general propositions. They were as follows : 
 
 " 1. That conditions in restraint of alienation are of feudal 
 origin, and depended on feudal tenure. They were good where 
 ever the grantor had the escheat or reversion. 
 
 " 2. That they were good before the statute of quia emptores, 
 because the grantor at that time^was the feudal lord, and had 
 the reversion. 
 
 " 3. That since the statute they are bad, because the escheat 
 or reversion was thereby taken away from the grantor. 
 
 " 4. That they are good in case of the king, since the statute 
 as before, because the statute does not take the escheat from the 
 crown. 
 
 " 5. That the possibility of reverter, spoken of by Lord Coke, 
 is the right to the escheat, and nothing more nor less." 
 
 Such are the propositions which the court, in that case, de- 
 clared to be deducible from the authorities. 
 
 It is clear therefore, that Judge Denio must have utterly mis- 
 understood that case, when he penned the assei-tion that the 
 argument of the Chief Judge, in his opinion therein, consisted 
 in showing that the condition was void, because " repugnant to 
 the nature of a fee simple within the sense of the authorities." 
 The only point was whether the deed created a tenancy in fee, 
 or merely assigned one ; in other words, whether it was a deed 
 of subinfeudation, or a deed of alienation ; and that was made 
 to depend upon the question, whether our statutes in that re- 
 spect, were like the statutes of England. * 
 
Number V. 
 
 Misconceptions and misstatements of Judge Deiiio exposed — A reversion, or possi- 
 bility of reverter, in the grantor, indispensable to uphold conditions — Conditions' 
 may be attached to estates in fee, at the time of their creation ; but as the state' 
 only can oreat'e estates in fee, so the state only can attach to them conditions — 
 A tenant, on assigning his tenancy, can not annex conditions — If he can, then 
 there is no difference between a deed of lease and a deed of assignment ; which 
 is a siitiple absurdity — Judge Denio feels constrained' by " considerations " out- 
 side of the law — Other errors and misstatements of Judge Denio exposed — 
 Judge Denio makes the statute of 1805 indispensable to the action — Absurdity 
 of the position — In quoting the preamble to that statute he skillfully suppresses 
 the word since — The constilutional question with respect to that statute, if the 
 Statute had any bearing on the controversy, not lilet by Judge Denio. 
 
 We have shown in the preceding number, that Judge Denio 
 began his argument by the formal reiteration of a proposition, 
 which the defendant's counsel asserted' and substantiated by 
 authorities ; and that it was so done as to' produce the impres- 
 sion, that the defendant's counsel controverted the proposition, 
 and left the case to depend upon its overthrow; while the point 
 which counsel did take, is carefully left out of sight. This was 
 the first but not the last of such misconceptions- and misstate- 
 ments. As another example, he says : 
 
 "Among the numerous authorities referred to by the defend- 
 ant's counsel, T. have been unable to find a single dictum, or the 
 slightest hint that such conditions were contrary to law, or that 
 they could only be attached to estates- for life or years, or that a 
 common law tenure between the parties, or a reversion in the 
 grantors, were necessary to uphold them." 
 
 It is not true that defendant's counsel referred to authorities, 
 to show " that such conditions were contrary to law, or that they 
 could only be attached to estates for life or years." 
 
 As already shown, it was conceded that such conditions could 
 be attached to estates in fee, just as well as to estates for life or 
 years. It was contended— and authorities were cited to prove 
 it — that estates in fee were subject to the same rules as estates 
 for life or years ; with this single exception, that no individual 
 could, in this state, create an estate in fee, while he could create 
 estates for life and years. 
 
 The point of the defence was, that the deed in question was 
 not a deed of lease, creating an estate, but was a deed of assign- 
 
29 
 
 ment merely transferring one. To this the court expressly as- 
 sent. Not only so, hut a labored argument is made, by both 
 Judges Denio and Selden, in support of that position. 
 . That being so decided, then follows the next point of the 
 defence, that no tenant on assigning his tenancy could annex 
 conditions to it ; and that this rule applied to estates in fee, just 
 as well as estates for life. Numerous authorities were cited and 
 read to sustain this point. It was the point most labored upon 
 the argument on the part of the defendant. 
 
 It therefore becomes the more remarkable, that it is entirely 
 kept out of sight in the opinion of the pourt. No-lawyer dare 
 proclaim the law to be, that a tenant on assigning his tenancy 
 can annex conditions the same as though he was creating a new 
 tenancy. Such a proposition would be a simple absurdity. It 
 would be no more nor less, than declaring that there was no dif- 
 ference between a deed of lease and a deed of assignment, be- 
 tween alienation and subinfeudation. 
 
 No lawyer dare proclaim that the case did not legally turn 
 tipon that point; the character and effect of the deed being 
 determined as they were. This point could not therefore be 
 avoided as immaterial. Hence the judgment could not be sus- 
 tained according to law, for this point could neither be over- 
 thrown nor avoided. 
 
 Judge Denio talks of being constrained by " considerations" 
 outside of the law — regard for '* parties interested in this species 
 of propertj'" — but whatever apology such " considerations" may 
 furnish for disregarding the plain rules of law, they certainly 
 afforded none for covering up the points which did arise by a 
 profuse discussion of points which did not arise. 
 
 There is another part of the judicial position last above 
 quoted, equally a mistake of fact, but of a diiferent character 
 and demanding a different answer. We refer to that part which 
 reports Judge Denio to say, that among the authorities referred 
 to by defendant's counsel, he could find no dictum or hint, "that 
 a reversion in the grantors was necessary to uphold" condi- 
 tions. 
 
 To those who heard ' the argument or have read the points, 
 this will appear a very remarkable assertion. A great many 
 authorities were not only referred to, but read on the argument, 
 showing a reversion indispensably necessary to uphold a condi- 
 tion. Among them, was Doe v. Adams, 2 Crompton and Jervis, 
 232, where it was expressly held, that " a party in whom there 
 is no reversion, can not have the right to re-enter." It was an 
 action of ejectment for the non-payment of rent. The plaintiffs 
 were the grantors, and were defeated in their action on the 
 ground of the want of a reversion in one of them. 
 
 Doe V. Goldsmith, in the same volume, p. 674, was a similar 
 case with a like ruling. 
 
 Doe V. Lawrence, 4 Taunt., 3.3, was a similar action. The 
 
30 
 
 plaintiff relied upon an express right of re-entry made in hii 
 own favor as the grantor. The defence was that the plaintiff 
 had no reversion. A verdict passed for the plaintiff. A rule 
 nisi was obtained to set aside the verdict on the ground that a. 
 right of entry could not be reserved to a party not having the 
 reversion ; in other words, to a stranger to the premises. The 
 verdict was set aside, the court holding, "that the case was too 
 clear for argument." 
 
 In Smith v. Packhurst, 3 Atkyns' Rep., 139, it was held that 
 " a right of entry always supposes an estate ; for a right of entry 
 is nothing without a right to hold and receive the profits ; and 
 if an estate be granted to a man, reserving rent, and in default 
 of payment, a right of entry be granted to a stranger, it is 
 void." 
 
 Lord Chief Justice Willes is reported to have said, that " a 
 case was cited to endeavor to show, that a right of entry might 
 subsist without an estate ; but I am inclined to think some mate- 
 rial circumstances in that case are omitted ; and we are agreed, 
 in our judgment, that the law is otherwise." In that judgment 
 the twelve judges concurred. 
 
 In Scott V. Lunt's administrator, 7 Peters's Rep. 606, Judge 
 Story is reported to have said, that, " It is clear, by the common 
 law, that a right of re-entry always supposes an estate in the 
 party, and can not be reserved to a mere stranger." 
 
 In Goodell v. Brigham, 1 Bosanquet and Puller's Rep., it was re- 
 marked by Eyre, C. J., that : "The powfer which anj'one creates 
 must be exercised over his own estate ; but when it has been 
 exercised over that estate, to the extent of that estate, that is, 
 when he has given away the whole fee simple and the whole use 
 of the fee simple too, it seems to me he is Jundus officio." 
 
 The foregoing are but a few comparatively of the cases to be 
 found in the books, holding the same doctrine. The text writers 
 lay down the same rule. We shall again notice the authorities 
 upon this point while discussing another branch of this subject. 
 We must have named enough to prove the recklessness of the 
 assertion that no such could be found. 
 
 While upon the subject of misstatements, there are others 
 which may as well be noticed in this connection. 
 
 At page 106, Judge Denio is reported to have said : 
 
 " It is, moreovei', argued on behalf of the defendant, that if 
 all other difficulties were removed, an action in the nature of 
 ejectment could not be maintained without a strict demand of 
 the rent on the land and at the precise time at which it became 
 payable — a formality which, it is admitted, has not taken 
 place." 
 
 This is purely apocryphah No such position had a place in 
 the points or was named upon the argument on the part of the 
 defendant. There is nothing said by Judge Denio in regard to 
 this assumed point, of importance to the case under discussion. 
 
31 
 
 This question of demand, belongs to rent-service. It is a com- 
 mon law ceremony applicable to the owner of lands who has 
 tenants tinder him, and to no one else. This case is decided to 
 be not of that character. 
 
 The same learned Judge has also obviously misread and mis- 
 stated the statute of 1805. It is the more remarkable, because 
 he makes that statute indispensable to the action. 
 
 At page 71, he says: " We have a legislative declaration, in an 
 act of 1805, passed about ten years after this conveyance, that 
 grants in fee reserving rents had then long been in use in this 
 state." At page 84, he says, "The act of 1805, which first 
 brought grants in fee reserving rents within the remedies of the 
 32 Heniy VIII, chapter 34, recited, as the motive for the enact- 
 ment, that such grants had long been in use in this state The 
 argument supposes that it was intended to give effect to such 
 only as had been executed in colonial times and during the first 
 eleven years of the state government. If such were the inten- 
 tion, it is inconceivable that some idea of the kind was not 
 expressed. The language used certainly conveys the understanding 
 that such transactions had been in use up to the time when the Legis- 
 lature was speaking." 
 
 Whatever force may be due to this reasoning of Judge Denio, as 
 he presents it, there is one considerable error in his premises, 
 which, corrected, spoils the whole. In stating the act of 1S05 
 he has omitted one word. lie says, it " recited as the motive 
 for the enactment, that, such grants had long been in use in this 
 state," Hence he says, it " conveys the understanding that such 
 transactions had been in use up to the time when the Legis- 
 lature was speaking." The language of the statute is: " whereas 
 leases or grants in fee, reserving rents, have long since been in 
 use in this state." 
 
 Now it is evident that the word "since," omitted by him, 
 qualifies the sentence, so as to utterly exclude the construction 
 for which he contends. "Long since " does not mean up to the 
 time of speaking, but the contrary. It not only means a long 
 time ago, but excludes the period intervening the time designated 
 and the time of using the word. 
 
 The contemporaneous history of the statute is also averse to 
 Judge Denio's construction, The immediate cause of its enact- 
 ment was the decision of the court upon a case founded on a 
 lease in fee, made before 1776, when, as was held in De Peyster 
 v. Michael, such leases could be made,, because the statute of 
 quia emptores was not then in force here. That being the case, 
 a reasonable purpose can be found for the enactment, without 
 torturing out of it, the intention to introduce the most oppress- 
 ive laws of feudal tenures, where they contend feudal tenures 
 never existed. 
 
 On page 105 of Judge Denio's opinion, he says: " There is the 
 question, in the next place, whether, where one has a perpetual 
 
32 
 
 rent and a right of entry on the land of another to enforce its 
 payment, transmissable to his heirs, but not legally transferable 
 by sale or assignment, the legislature can lawfully interpose by 
 an enactment declaring that thenceforward the rent and right of 
 entry shall be subject to transfer like a rent incident to a re- 
 version ; in other words, whether the act of 1805 can be applied 
 to conveyances and reservations of rent existing when it was 
 passed, without violating the provision of the Constitution of the 
 United States, which protects contracts from being impaired by 
 the state Legislatures." 
 
 Here, again, the reader would naturally suppose that the de- 
 fendant's counsel pressed such a question upon the court. But 
 it is not true. No such point was made, and no such question 
 suggested by counsel. No one, on the part of the defence, has 
 ever suggested a doubt but that the Legislature could make any 
 cause of action assignable. 
 
 The constitutional question pressed upon the court, was a 
 very different one. It was made in answer to the argument of 
 the court below. The point was this : That the Legislature 
 could not make one party liable to pay another's debts ; nor 
 give to one the right to enter upon and take the property of 
 another by an action of ejectment. In other words, the Legisla- 
 ture could not create the liability. The rights of the parties 
 were fixed by law before the statute of 1805, and it was not in 
 the power of the Legislature to change them. 
 
 This was the only constitutional question pressed upon the 
 court. But this point is not discussed in the judicial argument, 
 nor even mentioned. It is true, as of other points taken on the 
 part of the defence, that it could not be controverted. No one 
 dare proclaim that the Legislature has the power to enact 
 that a tenant in fee of lands, shall be liable to pay the 
 purchase money covenants of a preceding tenant. No one 
 dare announce that such liability existed at common law. Here 
 was a point in the way of sustaining the judgment, which was 
 beyond controversy. It could not be sustained according to law. 
 If to be sustained at all, it must be done contrary to law. 
 
 Here, again, the remark will apply, that whether the court 
 were or were not justified in giving judgment contrary to law by 
 " considerations" for " parties interested in this species of pro- 
 perty," of which Judge Denio so feelingly discourses, certainly 
 they can derive no apology from such source for attempting to 
 cover up points which did arise, by discussing those which did 
 not arise. 
 
Number YI. 
 
 Rent defined — No rent without a reversion — ^ Only a landlord has a suhsisting 
 right by law to re-enter for non-payment of rent — Judge Denio admits that the 
 relations of landlord and tenant do not exist, upon grants in fee, at common law, 
 and he is careful not to assert the existence of such relations by statute or other- 
 wise — Difference between a lease and an assignment ; by the former a tenancy 
 is created, by the latter transferred — No such thing as landlord and tenant except 
 as at common law — The relation can not he created by contract — No tenant, 
 upon assigning his tenancy, can make himself the landlord of that tenancy, by 
 an agreement to that effect with his assignee — The law here, and in England, 
 upon the question, the same — The profession and the public left to infer some 
 mythical relation of landlord and tenant, which no one had the moral courage to 
 announce — Judge Denio was willing the world should believe what he dare not 
 utter. 
 
 There was one material point taken on the argument by coun- 
 sel for the defendant, which was in part noticed by the court. 
 It was the only one receiving the honor of such attention, except 
 the fundamental position that the deed was not a deed of lease 
 but a deed of sale and assignment, which was sanctioned by the 
 court. 
 
 It is stated by Judge Denio somewhat gingerly. In speaking 
 of our statutes as to ejectment lor the non-payment of rent, he 
 says : " The defendant's position is, that these acts do not apply 
 to the case, because, as it is argued, the reservation of an annual 
 payment upon a conveyance in fee is not properly rent, as no 
 distress can of common right be made for it, and it is only dis- 
 trainable by virtue of an express provision contained in the in- 
 denture ; and the statute requires it to be a case between landlord 
 and tenant, which implies, it is said, that the relation should 
 exist at common law. But such reservations as the one before 
 us were considered as creating a rent within the legal meaning 
 of that term, from the time of Littleton to the present." 
 
 In this statement Judge Denio is partly right and partly 
 wrong. He was right in saying, that it was urged for the de- 
 fendant that : " The reservation of an annual payment upon a 
 conveyance in fee is not properly rent." He was wrong in 
 saying that the alleged reason was because, " no distress can of 
 common right be made for it." He mistook the effect for the 
 cause. Counsel for the defence made no such mistakes. 
 3 
 
34 
 
 The position of the defence was that the relations of lord and 
 tenant were not created by the deed, and that the annual pay- 
 mentswere not therefore rent, within the meaning of the statute. 
 For authority the elementary writers were referred to ; among 
 others, Watkins on Conveyancing, 73 ; where it is said, that " A 
 rent is properly a sum of money, or other thing, to be rendered 
 periodically, in consequence of an express reservation in a grant 
 or demise of lands or tenements, the reversion of which is in the 
 grantor or person demising. 
 
 " A rent, therefore, necessarily supposes a reception of such 
 lands or tenements from another, to whom they primarily be- 
 longed, and in whom the ultimate property continued vested ; 
 hence it follows that, if lands or tenements were not derived 
 from another, as anciently when lands were held in allodia, or if 
 no other person has such ultimate property in him, there can be 
 no rent. 
 
 " If a person, consequently, grant over his whole property in 
 certain premises to another, the other (or grantee) paying to 
 such person and his heirs a certain sum annually forever, such 
 annual sum will not be properly a rent, as the grantor has no ulti- 
 mate property or reversion in him. Such annual payment is, 
 indeed, commonly denominated a rent-charge or rent-seek; but it 
 is not strictly and in reality a rent ; and the common law, 
 accordingly, respected it differently, as it gave the grantor no 
 power of distress without a special stipulation." 
 
 Such was the position of the defence as to the word rent, and 
 the reasons for it. There must be landlord and tenant and the 
 rent incident to that relation, or the statutes do not apply. 
 
 The statute is sufiScieut to make good that position. It is as 
 follows (2 R. S., 505, § 30) : 
 
 " Whenever any half year's rent, or more, shall be in Srrear 
 from any tenant to his landlord, and no sufficient distress can be 
 found on the premises to satisfy the rent due, if the landlord has 
 a subsisting right by law to re-enter for the non-payment of such 
 rent, he may bring an action of ejectment for the recovery of 
 the possession of the demised premises." 
 
 It could not be denied, that the statute provided a remedy 
 only for a landlord to collect rent of his tenant. It could not 
 be applied in the absence of those relations, or to collect de- 
 mands of another kind, without so manifest a disregard of the 
 plain meaning of words, that even Judge Denio, anxious as he 
 was, daro not avow the attempt. Hence what could not be done 
 expressly, was attempted impliedly ; with how much ingenuity, 
 let us examine. 
 
 He says : " The statute requires it to be a case between land- 
 lord and tenant, which implies, it is said, that the relation should 
 exist at common law." 
 
 This involves two admissions: First. That the relation of 
 landlord and tenant must have existed, or the statute could not 
 
35 
 
 apply. And second : That such relation did not exist at com- 
 mon law. ,,, 
 
 Besides these two admissions, it was left to be implied, that'* 
 there was such a relation difi'erent from the common law rela- 
 tion, and that such differently constituted relation was created 
 by the deed in question. 
 
 Judge Denio evidently intended to be understood to say: 
 " True, here was no common law relation of landlord and tenant, 
 and no rent incident to such common law relation. But there 
 was another kind of landlord and tenant, and another kind of 
 rent, to which our statutes are equally applicable." That is the 
 only escape pointed out for the plaintiff. It is upon that single 
 implication that the opinion turns in favor of the plaintiff. The 
 reader was left to imply what the author of the opinion did not 
 care to utter. Admitting the relations of landlord and tenant 
 not to exist at common law, Judge Denio was careful not to 
 assert that such relations existed at all. But he dare not say 
 that the statutes could apply without such relations ; hence the 
 necessity of leaving this point for inference only. 
 
 The use which could be made of the word rent was not over- 
 looked. The plaintiff's friends did not lose sight of the fact that 
 no small number, even among those who pretend to some intelli- 
 gence, are so ignorant as to regard every deed containing the 
 word rent, as a lease, without regard to the character of the deed 
 itself. That word marks the limits of their knowledge of the 
 feudal system. Beyond, all is myth and mystery to them. They 
 talk of the fiction of feudal tenures, as though a system pre-emi- 
 nently substantial, was only a fiction, or founded upon fiction. 
 
 Now the word rent is not necessary to constitute a lease. It 
 is so stated in 1 Piatt on Leases, 9. It has been so expressly 
 decided in Hunt v. Comstock, 15 Wend., 667, and in Fairling v. 
 Schenck, 3 Hill, 344. 
 
 It is equally true, as we have already shown by authorities, 
 that the word rent in a deed of assignment, can not give it the 
 character of a lease. While the one does not require the pre- 
 sence, the other does not require the absence of such a word. 
 The only difference between a lease and an assignment, as prac- 
 tically regarded in the books, is, that by the one, a part only oi 
 one's estate is conveyed, and by the other, the whole. By the 
 one, a new estate or tenancy is created. By the other, a pre- 
 existing estate or tenancy is transferred. The one begets new 
 relations of lord and tenant. The other merely substitutes one 
 tenant for another. 
 
 It being conceded that no common law relation of landlord and 
 tenant was created by the deed in question, or existed between 
 the parties to the action, the question at once occurs, is there 
 any such thing as landlord and tenant except as at common law ? 
 Has the statute ever changed the common law mode, or insti- 
 tuted another 1 
 
36 
 
 Can individuals create the relation by merely contracting that 
 the one shall be the landlord, and the other the tenant 1 If the 
 relation can be created by contract, it can make no difference 
 whether the contract is or is not connected with the conveyance 
 of real estate. Confine it to such an exigency, and the question 
 comes directly to this : Can a tenant upon assigning his tenancy 
 make himself the landlord of that tenancy, by an agreement to 
 that effect with his assignee ? If he can not, then the judgment 
 in this case, is wrong ; for the transaction as evidenced by the 
 deed, is declared to be only the assignment of a tenancy. The 
 case was put to the court in that form. They do not answer it. 
 To hold that an assignment of a tenancy can be made the occa- 
 sion to add another lord to the same tenancy, would confound 
 all our laws of real estate. It is not, however, an unadjudicated 
 question. Hope v. Booth, 1 B. & Adol., 4 ; 20 E. C. L., 574— 
 was a case where the parties undertook to make themselves, the 
 one a landlord and the other his tenant, by an agreement to that 
 effect, made upon the sale of certain real estate from the one to 
 the other. There was a contract by deed to sell and convey 
 certain premises on payment of ^6900. There was a provision, 
 that in case the interest should be in arrear thirty days next after 
 due, the vendee " should be considered as a tenant of the said 
 lands to the vendor from the date thereof, at the yearly rent of 
 ,£40 10s., payable on the 16th of April and 16th of October in 
 every year ; and it should be lawful for A., his heirs and assigns, 
 to enter and distrain, and to sell and dispose of the distress, or 
 otherwise deal with the same, in like manner as in distresses for 
 rent reserved by lease." The vendee was let into possession, 
 one-half year's interest became due and was collected by dis- 
 tress. Another became due, and an action of covenant was 
 brought. The right to recover depended upon whether the deed 
 was to be construed as a lease and the payments as rent. 
 
 Lord Tenterden, C. J., said : " I am of opinion that the instru- 
 ment on which this action was brought was not originally a 
 lease, and that it did not become a lease by reason of the interest 
 being in arrear, and one of the parties having distrained upon 
 the other in pursuance of the power given to him by the deed." 
 The judges all concurred in that view. Parmenter v. Webber, 8 
 Taunt., 593, was a similar case. It went even further. There 
 was a stipulation in the deed, that the relation of landlord and 
 tenant was thereby created. There was a covenant for rent, but 
 it was held not to be rent, and that no relation of lord and 
 tenant existed. 
 
 The foregoing are, it is true, English cases. But the law here, 
 in that regard, is the same and has been so held. The case of 
 Sackett and Eeed v. Barnum, 22 Wend., 605, is to the same effect. 
 The facts were as follows : In 1836, the Weeds made a sealed 
 agreement with Barnum, whereby they covenanted to execute 
 to him a deed of conveyance of a farm. Barnum covenanted to 
 
37 
 
 pay them therefor |1635 — $235 on the 15th of July then instant, 
 and f 1400 in fourteen equal annual payments. It was further 
 provided that Barnum should take immediate possession of the 
 premises as tenant to the Weeds ; and it was further agreed as 
 follows : "And in consideration whereof, and in order the better 
 to secure the payments on the contract, it is admitted and agreed 
 that the relation of landlord and tenant shall, and does henceforth 
 exist between the parties, to all intents and purposes, and that the 
 parties of the first part may collect and recover all moneys becom- ■ 
 ing or to become due on this contract of and from the party of the 
 second part, by distress or otherwise ; as for so much rent due." 
 In case of non-payment, it was further provided that the Weeds 
 might " consider and treat him as a tenant holding over without 
 permission, after non-payment of the rent." 
 
 Barnum's property was levied upon by an execution in favor 
 of Sackett and Reed. The Weeds, upon their afiidavit, claimed 
 to be paid as landlords of demised premises. The sheriff refused 
 to pay, and a motion to compel him to do so was made. 
 
 Here was a case where, if it were possible to constitute the 
 relations of lord and tenant by a mere contract without the 
 requisite estates, the reversion and the tenancy, it must have 
 been accomplished. Moreover, the claimant had a statute in 
 his favor, that if an execution be levied upon any goods or 
 chattels, in or upon any demised premises liable to distress for 
 rent, the landlord of such premises to whom any rent of such 
 premises may be due, may at any time before a sale of such 
 goods, give notice of his claim and be entitled to receive pay- 
 ment from the sheriff from the proceeds of the sale, in preference 
 to the execution creditor. 
 
 The opinion of the court was delivered by Judge Bronson. , 
 He said that " the several payments which the vendee was to 
 make were not a rent or return for the temporary enjoyment of 
 the land — they were not reserved out of the annual profits by 
 way of recompense cir retribution for the possession of the pro- 
 perty, but they were a part of the consideration for the sale — ' 
 the price of the land itself, with the addition of interest, because 
 the payments were postponed to future periods. On default of 
 payment, the parties have stipulated for a remedy by distress, 
 as for so much rent due. Whatever may be the legal effect of 
 this agreement, as between the parties to it, I think they could 
 not, as against third persons, turn the price of the land itself 
 into rent, and thus acquire a preference over the execution 
 creditors of the vendee. The goods were not upon demised 
 premises and there was no rent due, within the meaning of the 
 statute." 
 
 These, with many other authorities of the like character, 
 were pressed upon the court upon the argument of the case 
 under discussion, to prove the rule well settled, that to constitute 
 landlord and tenant and rent, there was something besides an 
 
38 
 
 agreement required, something besides words ; that two estates, 
 the reversion and the tenancy, must be conjoined with the pro- 
 visions of the agreement; in other words, that no tenant on 
 assigning his tenancy; could, by conventional arrangement with 
 his assignee, make himself the lord of the premises. 
 
 It would have been much easier in the cases cited, to have 
 held a contrary rule, than in the case before the court ; for in the 
 latter the deed was in form an assignment. There was no agree- 
 ment that the parties should be regarded as landlord and tenant. 
 The words did not even find a place in the deed. There was 
 nothing in the language, indicating that the parties intended 
 such a relation. That the court did not question the rule of the 
 authorities cited, is manifest from the fact that they are passed 
 over in silence. There was no way, therefore, to sustain the 
 judgment and escape this point, except to leave the profession 
 and the public to infer the possibility of some mythical relation 
 of landlord and tenant, which no one had the moral courage 
 to announce. Judge Denio was evidently willing the world 
 should believe what he dare not utter. 
 
Number VII. 
 
 Judge Denio avoids the question of landlord and tenant, but ventures more boldly 
 upon the word " Rent," and makes that the foundation to sustain the judgment — 
 Because the plaintiff or others have, for many years, acted upon the assumption 
 that they were the owners of certain lands, in which they had no estate or inter- 
 est, therefore, in the opinion of Judge Denio, the plaintiff was entitled to 
 recover — The judicial argument is simply this : rent-service is rent, and rent- 
 charge is rent ; therefore they are just alike, and the plaintiff can recover the 
 farm just as well as though he owned it — The distinction between rent-service 
 and rent-charge is, that in the former the owner hath the reversion, in the 
 latter not — When Judge Denio placed plaintiff's case, as a rent-charge, he put 
 it, where all the authorities are against him — Judge Denio utterly misapprehends 
 section 325 of Littleton — No other Jurist ever committed the^ame blunder — 
 The common law, not only, gave no right of re-entry for the non-payment of a 
 rent-charge, but no remedy at all for its collection -^ The authorities to which 
 Judge Denio refers are applicable to rent-service alone. 
 
 In the preceding number, we have shown how the question of 
 landlord and tenant, as connected with the statutes, was avoided. 
 Upon the word rent. Judge Denio ventures more boldly, either 
 because he did not himself so clearly understand what rent 
 really was, or else he trusted more to the ignorance, in that re- 
 spect, of the profession and the people. 
 
 Leaving the terms landlord and tenant, impregnated by his 
 inuendoes, as he evidently supposed, with some unexpressed 
 meaning different from the common law, he abruptly dashes at 
 the word rent in the following manner. 
 
 He says: "But such reservations as the one before us, were 
 considered as creating a rent within the legal meaning of that 
 term, from the time of Littleton to the present. We have seen 
 that it was called rent in section 325 of the treatise already 
 quoted; and by looking into sections 217 and 218, we see that 
 it was one of the recognized species of rent, and was called 
 rent-charge." 
 
 The reader should bear in mind, that what Judge Denio was 
 trying to prove, was that the annual payments which he concedes 
 were not the rent of the common law, were nevertheless rent 
 somehow or other, so as to carry with them the same rules of 
 law as though they had really been common law rents. In other 
 words, his proprosition was thit two things wholly unlike, were, 
 
40 
 
 notwithstanding that nnlikeness, precisely alike. That is the 
 proposition which he undertook to prove as the foundation upon 
 which to sustain the judgment. 
 
 This proposition, absurd as it is, is neither misunderstood nor 
 misstated. The plaintiff claimed that his father had leased the 
 farm some seventy years ago, reserving the annual payments as 
 rent ; that since that time, his father had devised the farm to 
 him and died. The plaintiff, therefore, as the owner of the farm, 
 claimed to have possession thereof adjudged to him, for the non- 
 payment of what he claimed was rent-service. 
 
 To the case so placed on the record. Judge Denio dissents. 
 He virtually says to the plaintiff, " Your father did not lease, 
 but sold the farm ; these annual payments are not, therefore, 
 rent-service, but purchase money covenants. This whole matter 
 rests upon a deed of alienation, and not, as you suppose, upon a 
 deed of subinfeudation. Your father did not devise the farm to 
 you, for he had no estate or interest therein, after executing the 
 deed in question. To hold otherwise, would lead to the most 
 absurd conclusions. We should be obliged to apply laws which 
 prevailed in England, during the first two centuries after the 
 conquest, but which have been unknown even there for more 
 than three centuries before the first settlement of this country, 
 and which never had existence in this state." 
 
 " How then, "says the plaintiff, " is this action to be main- 
 tained. The only point in dispute is, whether the deed was one 
 of subinfeudation or of alienation, and that you decide against 
 me. Of course, the judgment must be sustained, right or wrong." 
 
 •'We can not lose sight," says Judge Denio, "of the considera- 
 tion, that you and many others interested in this species of pro- 
 perty have acted, beyond all doubt, for many years, upon the 
 assumption, that you were the owners of certain lands in which 
 you have no estate or interest. For such reasons, we should not 
 be at liberty, in my opinion, to decide against you. As for the 
 manner of doing it, we must have our own way. It is true, we 
 must apply the very laws which we denounce as inapplicable ; 
 but then it is an easy matter to do it, so that the people will not 
 be the wiser. We will call these annual payments a rent-charge. 
 Your case is then made out in this way. Had these payments 
 been rent-seroice, your right to recover would not be denied. 
 Now, rent-service is rent, and rent-charge is rents therefore, they are 
 just alike ; and you can recover the farm just as well as though 
 you owned it. We shall sustain your judgment, but we must be 
 allowed to argue the matter in that way." 
 
 The trouble with Judge Denio's logic, however ingenious it 
 may be, is, that his conclnsion, that a rent-service and a rent-charge 
 are alike, and therefore carry with them the same rules and re- 
 medies, is entirely wide of the truth. Instead of being alike 
 they are utterly unlike, 
 
 A rent-charge is, where the owner of the rent hath no future 
 
41 
 
 intenst or reversion in the laiid. A rentsBriiice is, where the owner 
 of the rent has the leversion. A rent-service is a compensation to 
 be paid by one person for the use and possession of another's 
 land. A rent-charge is a sum to be paid for any other purpose, 
 except as a return to the owner for the use of his land. It will 
 thus be seen, that a rent-charge differs from a rent-service, not only 
 in the purpose and consideration for which it is to be paid, but 
 in the position and connection of the parties to each other and 
 to the land. Baron Gilbert, in his work on rents, in speaking of 
 a rent-charge, says, this method was soon taken up, to provide for 
 younger children, or answer other extraordinary occasions ; and 
 the whole bulk of the estate, notwithstanding such grants, de- 
 scended to the heir entire, to support the dignity of the family. 
 
 It is difBcult to account for Judge Denio's assumption that the 
 payments were a rent-charge with a view thereby to sustain the 
 judgment. For, instead of thus putting the case in the way of 
 aid from the authorities in support of the judgment, he placed 
 the case where all the authorities are against him. Counsel ibr 
 the plaintiff was, if not more sagacious, more discreet in the 
 exercise of his sagacity, than to admit such a thing. 
 
 "The very definition of a rent-charge should have warned 
 against the position. The point sought by the court was to sus- 
 tain an action of ejectment to acquire possession of a certain 
 farm. Common sense, the common law and the statute all con- 
 spired to teach, that the plaintiff must first prove property in 
 the premises ; that he could not move a step without. 
 
 It is true, as hereinbefore explained, that if the deed in ques- 
 tion had been a lease, in its character and effect, and the 
 reservation of the annual payments consequently rent-service, the 
 very production of the deed, would have proved that point, in 
 connection with the proper evidence that the plaintiff had ac- 
 quired the rights of the maker of the deed. It would then have 
 appeared, that the grantor of the deed retained the reversion, 
 and that the plaintiff was the grantee thereof. The reversion of 
 an estate in fee, if in an individual, is another estate in fee. 
 Thus a right of property is proved, and so far the action made 
 out. Nothing then remains to be done, but to prove that the 
 estate created by the lease has ceased to exist, either by its fixed 
 limit or by violation of some condition. Having proved that 
 fact, the plaintiff as the reversioner, that is, as the tenant of the 
 next preceding estate, has a right to the possession of the pre- 
 mises, and his action is maintained. 
 
 It is plain from the definition, that the owner of a rent-charge 
 instead of standing in the same position as the owner of a rent- 
 service, as Judge Denio would have it, is in a diametrically 
 opposite position. Instead of owning the land, the defendant 
 owns it. This grows out of the difference in the character and 
 legal effect of the deeds ; the one being a deed of a lease and the 
 
42 
 
 other a deed of assignment ; in the one case, the grantor of the 
 deed being a lessor, and in the other a vendor. 
 
 In Blight V. Rochester, 7 Wheat., 547, Chief Justice Marshall 
 treated of the difference in the efi'edt of such deeds upon the con- 
 sequent rights of the parties, as being in direct contrariety, the 
 one to the other. He remarked, that " The title of the lessee is 
 in fact the title of the lessor. He comes in by virtue of it, holds 
 by virtue of it, and rests upon it to maintain and justify his 
 possession." 
 
 Of a deed of assignment, he says : " If the vendor has actually 
 made a conveyance, his title is extinguished in law as well as 
 equity, and it will not be pretended that he can maintain eject- 
 ment." 
 
 In Osterhout v. Shoemaker, 3 Hill, 518, Judge Bronson spoke 
 of a grantee in fee as follows : 
 
 " He owes no faith or allegiance to the grantor, and he does 
 him no wrong, when he treats him as an utter stranger to the 
 title." 
 
 In the case of the People v. Van Rensselaer, 5 Selden, 343, 
 Judge Denio cited those cases, and approved the doctrine of 
 them, remarking, that " It is settled that a grantee may hold 
 adversely to his grantor." 
 
 Applying the rule of those cases, which our Court of Appeals 
 has once expressly sanctioned, and does not now question, the 
 judgment in this case conld not be sustained. It was once 
 applied to reverse a judgment against Van Rensselaer. It is 
 not denied but that its application would be equally efficient to 
 reverse this judgment in his favor. It is not denied but that it 
 is equally applicable. The trouble was, that the court did not 
 feel at liberty to disregard " the assumption," upon which they 
 say the plaintiff had " acted for many years," and therefore did 
 not feel at liberty to regard the legal rights of the defendant. 
 
 It is evident, however, that either Judge Denio was not en- 
 tirely satisfied with the result of his reasoning, or he feared 
 others might not be. He must have been a little nervous about 
 his conclusion, that a rent-charge and a rent-service were just alike, 
 because a rent-charge was enumerated in the books as a species 
 of rent. This nervousness is manifested by his citing authorities 
 which apply only to rent-service, and asserting with apparently 
 exuberant confidence that they contemplated a rent-charge as 
 equally within their range. 
 
 He first refers to Littleton, section 325, as authority for treat- 
 ing purchase money covenants as rent. He could hardly have 
 made a more unfortunate reference for his purpose. Littleton 
 was putting a case of subinfeudation by way of illustrating 
 estates upon condition. He says : "As if a man by deed indented 
 enfeoffs another in fee simple, reserving to him and his heirs 
 yearly, a certain rent, payable at one feast or divers feasts per 
 annum." This was put as an instance of an estate upon condi- 
 
43 
 
 tion in deed, and as showing how, when a party creates an 
 estate, he could annex conditions whereby it conld be avoided 
 or destroyed, before its expiration by its natural limit. 
 
 The author of the text could not have used a word more sig- 
 nificant of such intention, than the word enfeoff, or less liable 
 to misconstruction. Its very composition indicated the intention 
 to create a feud or fee ; that is, in the language of Burrili's Law 
 Dictionary, " a barony or knight's fee, for which certain services 
 were due from the feoffee to the feoffor." No amount of tor- 
 turing, no ingenuity of logic, no dogmatisms in the mode that a 
 judge, like a king, can not err, could make this section of Little- 
 ton mean, that a tenant, on assigning his tenancy — whether it 
 be a tenancy in fee, or for life or years — could reserve rent, with 
 the same legal effect as though he had leased the premises. The 
 author of that work was never guilty of such arrant nonsense, as 
 the confounding a deed of lease with a deed of assignment, and 
 declaring that there was no difference between them. 
 
 It is no insignificant evidence against Judge Denio's proposed 
 reading of the section, that no one ever before so understood it. 
 For more than three centuries, that section has been Regarded 
 as using the word rent in the sense of a rendition by a tenant 
 to his landlord. Chancellor Kent embodies the substance of the 
 section in his Commentaries, and puts the same case by way of 
 illustration. That he understood it to apply only to cases where 
 the reversion was left in the grantor and the rent made incident 
 thereto — in other words to a rent-service, is plainly indicated 
 in the context. While upon that subject, he says : 
 
 " A condition in deed is either general or special The former 
 puts an end altogether to the tenancy, on entry for the breach 
 of the condition ; but the latter only authorizes the reversioner 
 to enter on the land by way of pledge until the condition be 
 fulfilled. The stipulations in the form of a condition are vari- 
 ous, and may be of any kind consistent with the general rules 
 of law, as that the tenant pay a rent yearly or quarterly, or 
 enfeoffs or do a specified service for A, or sow the land with 
 some particular grain, or do not assign or underlet without license, 
 or do not marry a particular person." 
 
 The notes to the text of Littleton by Lord Coke and Mr. Butler, 
 show the same understanding of the subject manifested by 
 Chancellor Kent. Blackstone and other writers take the same 
 view. Judge Denio in his reading, therefore, stands alone. No 
 one before him except one of the judges in the court below, 
 has ever attempted to construct a vagabond system of landlords, 
 requiring no iaterest or property in lands. 
 
 Again, he asserts that, " It was a rent, too, as has been shown, 
 for the non-payment of which a re-entry was given at common 
 law, where the right to re-enter was provided for in the deed." 
 
 Where such a thing has been shown, nowhere appears. It is 
 certain that there is no adjudicated case of the kind ; otherwise 
 
44 
 
 it would have. been cited. If Judge Denio supposed that any 
 such thing could be found in the text books, he has been un- 
 fortunate in his elementary reading, or else unfortunate in re- 
 membering what he has read. No principle is more indisputable, 
 than that the common law, not only gave no right of re-entry 
 for non-payment of a rent-charge, but no remedy at all for its 
 collection. 
 
 It is admitted in the covenant case, that the right to distrain 
 did not exist at common law as a remedy for the enforcement 
 of such payments.— 19 JVew> York Rep., 76. 
 
 That admission in connection witli the assertion that the com- 
 mon law gave the right to re-enter, betrays a profound ignorance 
 of the history of the remedy by distress and of the reason of its 
 introduction. It is admitted that the common law did not afford 
 the right to distrain, for the want of the reversion in the grantor. 
 It seems not to have occurred to Judge Denio, that the right to 
 distrain was only given as a preliminary or precedent remedy, 
 first to be resorted to as less oppressive, and to be exhausted before 
 re-entry could be had. Accordingly it did not occur to him, that 
 when he admitted the common law right to distrain not to 
 attach, he admitted no common law right to re-enter to exist. 
 
 Watkins, in his Treatise on Conveyancing, 176, treats of the 
 introduction of the right to distrain as follows : 
 
 " The rigor of the feudal law with respect to forfeiture, in the 
 cases of non-payment of rent, was soon, however, abated. It 
 was thought unreasonably severe to insist on non-payment of 
 rent at the ver^ day on which it was reserved ; and the law of 
 distress, was, therefore, adopted from the civil code. But, as 
 the distress was merely a substitute for the feudal forfeiture, it 
 follows that it could only take place where that was allowed. If 
 a person had no right of reverter, therefore, as in the cases 
 where the lands out of which the annual payment was to issue 
 had not moved from him, or where he had parted with his ulti- 
 mate property in the lands which had originally moved from him, 
 there could be no forfeiture to him of the lands or tenements; 
 and, consequently, he could not be entitled to a distress which 
 was merely substituted for the former remedy." 
 
 Gilbert, in his Treatise on Rents, declares the same rule (see 
 page 18). In regard to rent-charge, he says: "There could be 
 no forfeiture of the feud by the old law for non-payment of this 
 sort of rent ; for that were to admit a stranger into the feud 
 without the consent of the lord." (See also page 133 ; and 92.) 
 Judge Denio makes another admission fatal to the judgment. 
 He says : "Now the inconvenience which the statutes making a 
 declaration in ejectment stand in the place of a strict demand 
 were intended to remedy, was the great particularity and nicety 
 attending this demand at common law ; and this was precisely 
 as applicable to rents arising upon grants in fee as upon leases 
 for life or years." 
 
45 
 
 That was the position of the defendants. The statutes only 
 provided proceedings as a substitute for the common law de- 
 mand. That demand applied only to rent-service. It was one 
 of the ceremonies of the feudal structure, and never appli- 
 cable to a rent-charge. Judge Denio thus demonstrates the very 
 opposite of what he was trying to make out. The common law 
 demand applies only to rent-service. The statute only provides a 
 substitute. It follows then, that this case, not being one of rent- 
 service, can not be sustained. 
 
 He was right also in saying, that the common law demand 
 " was precisely as applicable to rents arising upon grants in fee 
 as upon leases for life or years." That was one of the proposi- 
 tions of counsel for the defendant upon the argument. Leases 
 in fee are undoubtedly subject to the same rules. An assign- 
 ment of a tenancy in fee is also subject to the same rules as an 
 assignment of a tenancy for life or years. The trouble with the 
 plaintiff's action was the deed upon which it was founded, was 
 not a lease but an assignment. Had it been a lease the payments 
 reserved would have been rent-service. Being an assignment, it 
 is said they were a rent-charge. It was the character of the deed 
 which changed the character of the payments. And here arose 
 the question, put by the defendant's counsel on the argument, 
 can a tenant on assigning his tenancy make himself the lord 
 thereof by an agreement with his assignee 1 Why has not Judge 
 Denio answered that question 1 
 
 We have now gone through with Judge Denio's opinion in 
 support of the ejectment, noticing its leading features, as well 
 as some general questions discussed in his covenant argument. 
 We have shown that his reasoning is all comprised in the formula, 
 that a rent-service is a rent, and a rent-charge is a rent, and there- 
 fore there is no difference between them. We have shown that 
 his authorities have reference to rent-service alone ; and that his 
 use of them is only an arbitrary misapplication. 
 
Number VIII. 
 
 Decision of the court revolutionary and disorganizing — Our statutes have made no 
 provision for the condition of rent-charges as in England — No distress has ever 
 heen known in this state, except for rent-service — Obstacles, in the way of the 
 attempt, to apply the laws peculiar to landlord and tenant, to parties, between 
 whom no such tenure existed — Contrast between the position of the ejected 
 populations of Ireland and Scotland, and the landholders of Albany and Rensse- 
 laer ; the former being tenants, and the latter obsolute owners of the lands — In- 
 toxicating liquors entitled to the protection of the Constitution, as property ; 
 while the owners of land not entitled to such protection — Only two ways, in 
 which a tenant of an estate in fee for life or years, can be deprived of that 
 estate — Plaintiff can not be benefited by the condition, because it was not 
 attached when the tenancy was created — Eemarljable confession as to the prin- 
 ciples which are to control the action of the highest court in the state — If pro- 
 perty be no longer an institution of law, then there is no such thing as property. 
 
 We have now presented the leading points discussed by coun- 
 sel on the part of the defendant, as well as the entire argument 
 of the court. There were other questions arising incidentally, 
 not j'et noticed. The revolutionary and disorganizing character 
 of the decision itself, as evidenced by the results, demands also 
 a more particular examination. 
 
 Among the incidental questions, were the following : Refer- 
 ring to the statute which provides ejectment for the non-pay- 
 ment of rent, the counsel for the defendant submitted, that; 
 
 The statute applies to no case, unless the right to distrain once 
 existed and has been taken away by the act of 1846. 
 
 The right to distrain never existed in this state, except for 
 rent ; that is, rent-service. J R. L., 434 ; J R S., 747, § 18, et seq. 
 
 The 5th section of 4 Geo. II, ch. 28, extending the remedy by 
 distress, " in cases of rent-seek, rents of assise and chief rents, 
 as in case of rent reserved upon leases," was not copied into our 
 act. The English statutes did not include rent-charge.— Burton 
 on Real Property, § 1057. Smith on Real and Personal Pro- 
 perty, 10. 
 
 The omission of the 5th section, is conclusive, that the inten- 
 tion was to limit the remedy by distress to rents " reserved upon 
 leases." There being no sach rent existing in this case, the 
 remedy by distress did not exist, unless it existed by virtue of 
 the contract between the parties to the deed, which would not 
 
47 
 
 help to sustain this case ; for if it existed by power of the con- 
 tract, it still exists, and the right to distrain has not been taken 
 away. The statute of 1846 only abolished distress for rent. It 
 did not take away such remedy for any other demand, nor pro- 
 vide re-entry in any case, except where it abolished distress. 
 Consequently, if the right to distrain ever existed in this case, 
 it exists now, and the 15 days' notice law did not apply. 
 
 It is clear that the Eegislature of 1846 did not understand that 
 the right to distrain existed in this state, except for rent ; other- 
 wise they would not have limited the abolition thereof to rent 
 alone. Had it been supposed, that such a remedy could be insti- 
 tuted, by contract, to enforce the collection of purchase money 
 covenants, or for any other demands, it is reasonable to suppose 
 the abolition of distress would have been made more compre- 
 hensive. The Legislature were not seeking to depress the rights 
 of land owners, in collecting rents, below the remedies provided 
 for other demands, but simply to reduce them to the same stand- 
 ing. They were aiming at equalities, not inequalities. But if 
 distress can be provided as a remedy for all or for any demands, 
 except rent, by contract of the parties, they discriminated 
 against rents. For such contract provisions would, as to rents, 
 be unquestionably void. It has been so declared by this court, 
 in Van Heusen and Charles v. RadciifiF, 17 N. Y. Eep., 582, 
 where the lease contained a chattel mortgage of such furniture, 
 as the lessee should thereafter purchase, as well as that on hand. 
 It was declared to be void, as to property thereafter to be pur- 
 chased, because, if otherwise, it would restore distress for rent. 
 
 Now, supposing the lessee had been a vendee, and the deed of 
 bargain and sale had contained just such chattel mortgage pro- 
 visions as security for the purchase money, would it have been 
 any the less void'? And supposing the provisions iiad gone 
 further, and covered not only the personal property of the 
 vendee thereafter to be purchased, but all the personal property 
 which his heirs or assigns might thereafter at any time have, 
 would it have been any less oppressive, than distress for rent, if 
 held to operate 1 Had it been understood that such a power of 
 instituting remedies existed, it is not likely that it would have 
 escaped abolition in 1846. 
 
 There is nothing peculiar in the remedy by distress, over other 
 remedies, whereby parties can fasten it upon, their property, or 
 whereby one party can attach it to the property of another. 
 It will not be necessary to consider in this case, whether Van 
 Rensselaer could have taken the property of the covenantor, in 
 payment of his covenants, by virtue of his agreement that he 
 might do so. The question is, could the plaintiffs, as assignees 
 of the covenants to Van Rensselaer, have appropriated the de- 
 fendant's property in payment of those covenants, because the 
 grantee had covenanted that they might do so. If it could ever 
 
48 
 
 have been done, it is clear it can be done now ; for nothing in 
 our legislation has changed any rule of law upon the subject. 
 
 The questioUj then comes to this : Can A. purchase a farm and 
 make B. liable to pay for it, or in default, subject his property to 
 be taken and sold by the vendor, by merely covenanting that it 
 shall be so 1 If it could ever have^een done it can be done now. 
 
 It is therefore evident : 
 
 First. That the right to distrain never existed under the deed 
 in this case. 
 
 Second. If it ever did exist, it now exists ; and in either case, 
 even if the statute as to re-entry and ejectment, is made to apply 
 to vendor and vendee, this judgment could not be sustained. 
 
 The first section of the act of 1846 was confined to rent, and 
 the second was no more comprehensive. 
 
 3. It will not help the judgment to call the covenants a rent- 
 charge. It resolves itself into the same question, whether a 
 tenant in fee, or of any other estate, can sell and transfer his 
 tenancy, and fasten covenants and conditions to it. The name 
 does not change the thing. If the owner of any estate can do so 
 on purchasing, he can at any other time. He could covenant to 
 pay certain sums, or perform certain services, and that all suc- 
 ceeding owners of the same estate should do so, at one time as 
 well as another. The consideration might as well be something 
 else as purchase money. And the payments might as well be in 
 a limited as an unlimited number of installments. The laws of 
 this state have made no distinction.. Our statutes have never 
 made provision for rent-charges as in England. No distress has 
 ever been known in the state, except for rent, by a lord against 
 his tenant ; and no ejectment or re-entry for the non-payment of 
 any sum, by a stranger to the land, has ever been allowed or 
 tolerated, nor can it be. If the rights of property can be trans- 
 ferred by the operation of a condition of forfeiture, from one 
 party to another, then individuals can be deprived of property 
 without due process of law. By purchasing lands, and then sell- 
 ing, the country would be governed by individual contracts, and 
 subject to change or conflict upon every alienation. Every party 
 might be liable to pay every other party's debts, and to consult 
 the will of strangers as to personal habits and business occupa- 
 tions, under penalty of having all his property taken from him 
 without his knowledge or consent. 
 
 Called a rent-charge, it none the less results in the question, 
 whether a tenant can impose conditions to avoid or defeat the 
 estate which he holds by a deed of alienation or assignment. 
 For, conditions, which are to transfer an estate from one party 
 to another, are unknown. Such a mode of transfer has never 
 been recognized in the law. The efi'ect of conditions is limited 
 to enlarge, avoid or defeat an estate j never to transfer. See 4 
 KefttCom., 123, 125; 2 Black. Com., 151, 154; 2 Cruise Dig., 
 
49 
 
 1,2; Bacon's Ab. Conditions ; Shep. Touch., ch. 6 ; Taylor's 
 Land. & Ten., § 276. 
 
 The last author cited, says : " A condition has strictly for its 
 object, the defeating or avoiding an estate ; but where an estate 
 is to be created or enlarged, it is technically upon a limitation." 
 
 The elementary writers, generally will be found to concur in 
 that rule. 
 
 Here were positions and principles commended to the attention 
 of the court, which they have found more convenient to pass in 
 silence than to discuss. They could neither be avoided as imma- 
 terial, nor controverted as incorrect. 
 
 Those are only a few of the obstacles in the way of the attempt 
 to apply the laws peculiar to landlord and tenant to parties be- 
 tween v/hom no such tenure existed. 
 
 If the decision is to be carried out, it will prove more revolu- 
 tionary to long acknowledged rights of property, than any 
 action, judicial or legislative, of which any record has been pre- 
 served. Limited as a favor to the parties of whom Judge Denio 
 speaks as interested in a particular species of property, the 
 results would be the despoliation of thousands. Almost the en- 
 tire population of large districts of country must be forcibly 
 driven from the soil. It would be no transient population that 
 suffered, but a generation born and always resident upon the 
 territory ; and whose fathers and mothers were born and have 
 died in the same places. It would be a forcible expulsion, of 
 necessity, not because the people are not law-abiding in charac- 
 ter, but because all their property is in the lands which they 
 occupy, and their very necessities would force them to yield 
 only to force. 
 
 Such a spectacle would be no ordinary commentary upon the 
 workings of our government. During the present century, large 
 districts in Ireland and Scotland have been depopulated at the 
 point of the baj^onet, to suit the caprices or the cupidity of their 
 lordly proprietors. Houses have been pulled down or burned 
 and the inmates driven off or buried beneath the ruins, to make 
 room for sheep-walks and hunting grounds. The more humane 
 looked on with horror and dismay. But the parties who moved 
 the desolation, were the owners of the land ; while the sufferers 
 were their tenants. The law was with the aggressors, and 
 humanity was excluded. 
 
 Here there are no such mitigating circumstances. Here, 
 while there is no possibility of abatement in the character or 
 ^■egree of the cruelty, it must present features giving to it a 
 much more abominable shade. Here, the parties to be driven 
 off, hold the most absolute kind of property which an individual 
 can hold, namely: estates in fee by tenure immediately of the 
 state. As every tenant has in his estate an absolute right of 
 property as to everybody except his landlord, or in other words, 
 except the party whose lands he holds, and as in all estates in 
 4 
 
50 
 
 fee the state alone is the landlord and proprietor, it follows 
 that tenants of such estates have in their estates the absolute 
 right of property as against the plaintiffs and every other indivi- 
 dual in the world. Of course, therefore, it can not be iirged 
 that the judges were forced by the law to make the decision. 
 They fall back upon considerations and influences outside of the 
 law, and expressly make such considerations and influences a 
 matter of excuse for their action. 
 
 Mark the difl'erence of the avowed principles now and on a 
 former occasion. When traffic in intoxicating drinks was in- 
 hibited by statute, and confiscation directed as a penalty for 
 selling or keeping, the court declared the statute a nullity, fhey 
 admitted that the statute was demanded by the strongest possi- 
 ble considerations ; that intoxicating beverages were noxious to 
 the political, moral and social economy of the world ; that no 
 good followed as a counterbalance to the evils ; and that the 
 best interests of humanity required the enforcement of the sta- 
 tute. But, say the judges, intoxicating drinks are property ; 
 and " property is an institution of law, and not a result of spe- 
 culation in science, in morals, or economy. Peing property, 
 intoxicating drinks are as much entitled to the protection of the 
 constitution as lands, houses, or chattels of any description." — 3 
 Kernan, 383, et seq. 
 
 Such was the rule of action prescribed on that occasion. No 
 one then questioned the rule. No one has since questioned it. 
 Every thinking mind felt greater security in his property, his 
 liberty and his life, at the idea that we had a court regardful 
 only of the law and not fluttering under the pressure of outside 
 influences. 
 
 In the case under discussion, the property was in lands, and 
 not in liquors ; the defendant was conceded to be the owner in 
 fee, and the plaintiff witliout any estate or interest in the 
 premises. The end aimed at by the action was a transposition 
 of the parties, so that the plaintiff might own in fee and the 
 defendant be without estate or interest. It may be better 
 understood stated in another way. The defendant was the 
 tenant of the state. The plaintiff a stranger. The point was to 
 thrust the defendant out of those relations and put the plaint- 
 iff in. 
 
 It is' a principle which should be familiar to every one, and 
 probably is, that no tenant of any estate, in fee, for life, or years, 
 can be deprived of that estate except in one of two ways. First, 
 in case some condition was attached to the tenancj'' at the time 
 of its creation by the party creating it, and in his own favor, the 
 non-fulfillment of which is by its terms to work a forfeiture, then 
 the proprietor or reversioner, upon the non-performance, may 
 put an end to the estate or tenancy ; when he will be entitled to 
 the possession the same as though no such estate or tenancy had 
 pver been created. But that is not this case. Here is but one 
 
51 
 
 estate in fee. There can be but one, for subinfeudation was not 
 allowed. The state is conceded to be the proprietor or rever- 
 sioner of that fee, and should the fee itself cease to exist, the 
 state would be entitled to the possession. 
 
 There is another good reason why the plaintiff can not be 
 benefited under this head. The condition was not attached when 
 the tenancy or fee was created, nor by the party who created it, 
 but by a tenant on assigning the tenancy or fee. It has already 
 been made clear, that no tenant on assigning his tenancy can 
 annex conditions to it. 
 
 Second, while the estate exists, the tenant can not be deprived 
 of it, when it is a freehold as in this case, except by deed of convey- 
 ance. There are but two ways^of making such a deed. 1. It 
 must be the voluntary act of the party, by himself , or by his 
 authorized agent ; or, 2. By the sheriff of the county, author- 
 ized thereto by a previous judgment, execution and sale. 
 
 That is not this case either. The plaintiff can not claim under 
 this head. It is thus demonstrated, that this action can not be 
 sustained, nor justified, by law. There is neither color nor 
 show of law about it. It is an unqualified assumption of abso- 
 lute power in defiance of law. It is so acknowledged by Judge 
 Denio, in language which can not be mistaken. He says : 
 
 "In determining upon the influence which the course of adjudi- 
 cation in our own courts ought to have upon the judgment we 
 are now to give, we can not lose sight of the consideration that 
 all parties interested in this species of property have been en- 
 couraged to act, and have, beyond all doubt, acted for many 
 years upon the proposed assumption, that they were, on the one 
 hand entitled to the benefit of, and subject on the other to the 
 burden of the remedies now sought to be enforced." — 19 JY. Y., 
 94-5. 
 
 This is a remarkable confession to come from the highest 
 court in the state, as to the principles which are to control that 
 court. It carries with it an unmistakable annouucement that 
 certain assumptions are to take the place of the rules of law as 
 the guide to judicial action. It becomes, therefore, a matter of 
 moment to understand, as well as we can, what those assumptions 
 are, and whose assumptions they are, which are to play so im- 
 portant a part as the taking of property from one man and giving 
 it to another. 
 
 There is no difficulty in determining whose assumptions they are 
 not. It is self-evident that Judge Denio meant by all parties only 
 all parties on one side of the conflict. For here was an action be- 
 tween opposing parties ; and there is a general contest of a similar 
 character between other parties. At the bottom of the whole, as 
 the exciting cause, are the conflicting assumptions of the opposing 
 parties. It is on the one side only, that the parties assume that 
 they are entitled to the benefit of the " remedies." The same 
 parties, only, assume that their opponents are subject to the bur- 
 
52 
 
 den. The pal-ties on the other side assume directly the contrary. 
 Otherwise, how would there have been an action before the 
 court, or a contest anywherel Any other reading would be 
 absurd. 
 
 It it equally clear that the assumptions referred to, are not of 
 law, nor founded upon law ; nor are they the actual assumptions of 
 the plaintiff. The assumptionsof the parties stood as follows: The 
 plaintiff assumed that he was the reversioner of the estate in fee 
 held by the defendant, on the ground that the statute oiquia empio- 
 res was not in force here, or did not apply to the deed in question ; 
 and that, therefore, the deed was an act of subinfeudation. On the 
 contrary, the defendant assumed that the state, and not the 
 plaintiff, was the reversioner, upon the ground that the statute 
 was in force here ; and that the deed, therefore, was an act of 
 alienation, and not of subinfeudation. It thus appears that the 
 only point of conflict between the parties, was, whether a cer- 
 tain statute was or was not in force at a certain time, and appli- 
 cable to a certain deed. 
 
 Had the court declared the statute never to have been in exist- 
 ence here, because so long assumed not to be in force, there would 
 have been more sense in the announcement. But that could 
 not be safely done. The De Peyster case and others were be- 
 fore them, declaring the statute in force. Judge Denio, therefore, 
 unhesitatingly, and with no little apparent zeal, again repeats 
 the decision that the statute was in force, and that it had always 
 formed a part, not only of the state laws but of the colonial also ; 
 and that the deed was consequently one of alienation and not of 
 subinfeudation. His associates concurred with him. All the 
 assumptions of the plaintiff were thus denied. There was no- 
 thing left whereupon to sustain the judgment There was no 
 dispute as to what constitutes a party the owner of lands; nor 
 as to what constitutes the relations of landlord and tenant. 
 
 Judge Denio, therefore, in his efforts to defend the judgment 
 was forced to take the position we are now considering. The 
 plaintiff's assumptions of title to the lauds being declared un- 
 founded in law and false in fact, there was no mode, of a legiti- 
 mate character, whereby possession of the premises could be 
 awarded to the plaintiff. Driven to that conclusion, Judge Denio 
 proclaimed as a last resort, that the court could not lose sight of 
 the assumptions themselves. That is, the plaintiff has assumed 
 to own the premises, and though he has wholly failed to prove it, 
 his failure must be turned into success by the will of the court, 
 from mere sympathy or regard for the plaintiff and his pre- 
 tensions. It was virtually a proclamation, that, in one class of 
 cases, at least, the judgment of the court must disregard the law 
 and follow the sympathies of its individual members. One single 
 view of the case places this conclusion beyond dispute. But 
 for the fact that the plaintiff failed to show that he was, what 
 he cla,imed to be, the reversioner or proprietor of the lands in 
 
53 
 
 question, there would have been no occasion or cause for the 
 announcement of the proposition of sympathy on the part of the 
 court as the grounds whereupon to. sustain the judgment. 
 
 In its consequences, this decision reaches beyond the immedi- 
 ate parties to the suit. No intelligent mind can fail to perceive 
 that its character is revolutionary and disorganizing. The 
 injury which must follow can not he limited to the immediate 
 sufferers. If property is to be no longer an institution of law, 
 but to depend upon the sympathies and prejudices of individuals, 
 then it ceases to be an institution of any kind. There would be 
 no such thing as property. 
 
 In the Constitutional Convention of 1846, Judge Ruggles said 
 in debate, that, " There was no danger that any body of men 
 assembled as a Legislature would assume to take the retrograde 
 step of again establishing feudal tenures." It probably did not 
 occur to him that a body of men assembled as a court, " would 
 assume to take the retrograde step," of re-producing a feudal 
 system as one of the institutions of the state, after deciding that 
 feudal tenures never had existence here. But what was not even 
 apprehended from the Legislature, has been more than realized 
 from the Judiciary. It matters little whether this experiment 
 on the part of the court has grown out of sympathy for persons 
 or sympathy for' systems. In either case, if to be carried out as 
 initiated, it can be scarcely less overwhelming to the institutions 
 of this state, than the Norman Conquest was to England. 
 
Number IX. 
 VAN RENSSELAER vs. HAYS. 
 
 statement of the case — Action covenant — Plaintiff claims that deed was one of 
 subinfeudation, leaving a reversion in the grantor — On the other hand, defendant 
 claims that deed was one of alienation, and that, consequently, he was absolute 
 owner, with the State for reversioner — Every part of plaintiff's theory denied by 
 the court, and defendant held to be right — No covenant can attach as a burden, 
 except there be two estates, the reversion and the tenancy — Holding that "the 
 statute quia emptores was in force, was, in effect, holding, that the judgment could 
 not be sustained by law — Judges undertake to make out, that purchase money 
 covenants, alike with rent covenants, may be so made as to run with the land — 
 Such a proposition never before ventured — All the authorities, even those of the 
 Court of Appeals itself, are opposed to it — The absurdity of a. covenant, to pay 
 a rent- charge running with the land, exhibited — The same kind of oppression 
 imposed by the Norman conqueror upon the farmers of England, proposed by 
 the Court of Appeals, to be imposed upon the farmers of this state. 
 
 This was an action of covenant founded upon the like assump- 
 tions as the action of ejectment in Van Rensselaer against Ball, 
 the decision of which has been reviewed in the preceding num- 
 bers. In each case, the plaintiff, by his action, was in pursuit of a 
 remedy for the collection of alleged rents. In each, he assuuf&d 
 to be the reversioner, of whom the defendant held in fee. In 
 this, as in the ejectment case, a concise statement will sufficient- 
 ly show the real contest as it existed between the parties to the 
 suit. 
 
 In 1796, one Stephen Van Rensselaer now deceased, made a 
 deed in fee to one Jacobus Deitz, of a certain farm in the county 
 of Albany. As the purchase price therefor, Deitz covenanted to 
 pay yearly thirty biishels of wheat, four fat fowls, and to per-, 
 form one day's service with carriage and horses. 
 
 The plaintiff claimed that the deed was one of subinfeudation ; 
 in other words a lease in fee, leaving a reversion in the grantor ; 
 and consequently, that the annual payments, being a render or 
 return for the use of the land, were rents due from a tenant to 
 his landlord. 
 
 To connect himself therewith, the plaintiff claimed that the 
 grantor of the deed had subsequently devised the same farm to 
 him, whereby the plaintiff became the owner of the reversion 
 
55 
 
 and the landlord, entitled to the annual payments as rents inci- 
 dent to the reversion. 
 
 To connect the defendant with the alleged liability, it was 
 shown that he was the owner in fee by means of several aliena- 
 tions subsequent to Van Rensselaer's alienation to Deitz. 
 
 In opposition to the foregoing theory of the plaintiff, it was 
 claimed by the defendant, that the deed to Deitz was not one of 
 subinfeudation, but of alienation ; not a lease creating a new 
 fee, but an assignment transfering an old one ; and as a conse- 
 quence, that no reversion was left in Van Rensselaer, the grantor, 
 and of course, none existed in Van Rensselaer, the plaintiff ; that 
 the annual • payments were not, therefore, rents, but purchase 
 money, and did not run with the land. 
 
 Such was the substance of the issue as presented by the 
 •parties. If a reversion was left in the grantor, the right to re- 
 cover was not denied. If no reversion was left, the right to 
 recover was not claimed. 
 
 The contest between the parties was still more narrowed, so 
 that the whole rested upon a single point. It was agreed, that 
 if the statute o? quia empfores was not in force, the plaintiff was 
 right in his theory and could recover. If the statute was in 
 force, the defendant was right, and the plaintiff could not 
 recover. 
 
 This point and the decision of the court thereupon have been 
 sufficiently discussed in the preceding numbers. It is enough 
 for the present purpose to say, that every part of the plaintiff's 
 theory has been denied by the court, and the defendant declared 
 to be right. That is, it has been decided, that the statute of quia 
 emptores was always a part of our laws ; and as a consequence, 
 that the deed was one of sale and assignment, leaving no rever- 
 sion in the grantor ; and the annual payments were not rent in 
 return for the use of property, but the purchase price in exchange 
 for the right of property. Stated in. few words, the transaction, 
 as decided upon by the court, was thus : Old Stephen Van Rens- 
 selaer, being the owner of an estate in fee, sold and conveyed 
 that estate to Deitz, receiving therefor the covenants in ques- 
 tion. 
 
 The judges having thus discarded the plaintiff's theorj', while 
 they strangely resolved to sustain his action, evidently felt that 
 an immense labor was necessary to justify their decision before 
 the profession and the people. True, it was an impossible un- 
 dertaking to declare in favor of subinfeudation, for not only the 
 statute but the De Peyster case was in the way. But was it not 
 equally impossible to sustain the action without 1 Did they 
 open any way to save the plaintiff by deciding the statute of 
 quia emptores to be in force 1 While it is true that covenants for 
 rent run with the land in a two-fold manner, on the one hand as 
 an incident of the reversion and beneficial only to the owner 
 thereof, and on the other as a burden to the tenancy, alike 
 
56 
 
 whether the lessee or some one else be the tenant, it is equally 
 well settled, that no covenant can attach as a burden, except 
 where there are two estates, the reversion and the tenancy, and 
 except where the plaintiff represents the one of those estates 
 and the defendant the other. Holding, therefore, the statute of 
 quia emptores to be in force, was, in effect, holding that the judg- 
 ment could not be sustained by law. Having so determined, and 
 at the same time resolved to decide as they did, the judges then 
 had no alternative but to attempt to confound alienation with 
 subinfeudation — a deed of assignment with a deed of lease. 
 They were then forced to contend that covenants for rents as 
 between lessor and lessee, and covenants for purchase money as 
 between vendor and vendee — in the case before them at least — 
 were precisely alike ; that the plaintiff without the reversion 
 was entitled to the same remedies as he would have been with , 
 the reversion. 
 
 Reduced to a more general proposition, the judges undertook 
 to make out that the owner of every estate in lands, was, in cer- 
 tain cases, liable to pay the purchase money covenants of every 
 preceding owner ; or, in other words, that purchase money cove- 
 nants, alike with rent covenants, may be so made as to run with 
 the land. 
 
 Off the bench, no lawyer has yet ventured to assert such a 
 proposition. No rule is more familiar than that which requires 
 a vendor of lands, in case he desires a lien for his purchase 
 money, to take a mortgage or judgment. Even when so secured, 
 subsequent purchasers do not incur the personal liability of pay- 
 ing or fulfilling. While no one has ever denied that rent cove- 
 nants run with the land, it is equally true, that no one has ever 
 claimed that purchase money covenants do ; or that they can be 
 made to do so by any possible arrangement of the parties. The 
 undertaking, thei-efore, of the judges to make out such a propo- 
 sition, was new and original. No adjudicated case and no ele- 
 mentary authority could be found in its support. 
 
 In the case of Trotter against Hughs and others, 2 Kernan, 74, 
 there is a decision involving (his subject, and containing the 
 views of Judge Denio and his associates at that time. C. W. 
 Trotter made a deed in fee of certain premises to one Hughs. 
 The premises were then under mortgage for $1,400, to Mrs. 
 Striker, which mortgage had been made by one Jonathan 
 Trotter. The deed from C. W. Trotter to Hughs, by an express 
 provision in the deed, was declared to be subject to the mort- 
 gage ; and, "which mortgage," it was declared, "forms the 
 consideration money in this deed." C. W. Trotter then assigned 
 all his right and claim, arising from the provisions of the deed, 
 to Jonathan Trotter. Jonathan Trotter then commenced his 
 action against Hughs, praying that Hughs be adjudged to pay to 
 plaintiff the $l,400,or to satisfy the mortgage, or that the pre- 
 
57 
 
 mises be sold to satisfy the amount due on the mortgage, and 
 that Hughs pay any deficiency which might exist. 
 
 The complaint was dismissed, ou tlie ground that Hughs was 
 not personally liable for the mortgage debt. On appeal from 
 the judgment, the Court of Appeals affirmed the judgment, 
 Denio, J., delivering the opinion. 
 
 In'the case under review, it is admitted by the court, that as 
 a general rule, purchase money covenants do not run with the 
 land. Selden, J., in his opinion, says : 
 
 " There is no doubt, that as a general rule, covenants run with 
 land, only when the relation of landlord and tenant exists, and 
 where there are two estates, with one of which the covenants 
 run as a benefi.t, and with the other as a burden." 
 
 Again he says : 
 
 "Authorities which go merely to support the general rule, are 
 to be laid aside, because that is not in dispute. The question 
 relates solely to an exception." 
 
 It is worthy of remark, that neither Judge Selden, nor any of 
 his associates, attempted to define the exception, or to point out 
 what was necessary to bring purchase money covenants within 
 it. They have left it open to speculation and inference. It 
 becomes important, therefore, to inquire in the outset, for the 
 peculiarities, if there be any, of the deed from the senior Van 
 Rensselaer to Jacobus Deitz. 
 
 The granting part of the deed was in the usual language of 
 deeds of bargain and sale. The grantor granted, bargained, 
 sold, remised, released and confirmed to the grantee, and to his 
 heirs and assigns forever, " all that certain farm." He also 
 covenanted to warrant and defend. On his part, there was 
 nothing more and nothing less expressed. There was not a 
 word indicative of subinfeudation, or of a lease. Neither the 
 word landlord nor the word tenant occurred in the instrument. 
 It was an ordinary deed of alienation in its very language. It 
 so far differed from the deed in the De Peyster case. The 
 granting part of that deed was in the words of a demise. Jts 
 character and effect were adjudged to be that of alienation, 
 because the statute had so made it. But for the statute, it 
 •would have been otherwise. In the case under review, the deed 
 was clearly one of alienation, from its very language, independ- 
 ently of the statute. 
 
 So far, there was nothing peculiar in the deed to constitute 
 the purchase money covenants an exception to the general rule. 
 Had the grantor taken a note, or bond, or covenant, or promise 
 in any form, and a mortgage of the land, or a judgment, as se- 
 curity, he would have acquired a lien on the premises ; but it 
 will not be pretended, that subsequent purchasers would have 
 been liable ; or, in other words, that an action like this could 
 have been maintained. 
 
 There is nothing in the covenants themselves which is relied 
 
58 
 
 upon to attach them to the land. The relations of the parties 
 conld not contribute to such a result, for they were only vendor 
 and vendee. No help is pretended to be derived .from the fact, 
 that the covenants were for wheat, or hens or labor, instead of 
 money. Nor is the want of a mortgage or judgment an alleged 
 cause of the adhesion of the covenants. , 
 
 The only point made by the judges is, that these annual pay- 
 ments were a valid rent-charge. That name is bestowed, be- 
 cause of a provision of distress appointed in the contract, as a 
 security for the fulfillment of the covenants. This provision 
 seems to be the peculiarity fixed upon in the judicial mind, as 
 the one, which of itself constitutes the exception, within which 
 they save the judgment. When Jacobus Deitz bought the farm 
 in 1796, to secure the purchase money, he agreed, in case of his 
 default, that " it shall and may be lawful to and for the said 
 Stephen Van Rensselaer, his heirs and assigns, or any of them, 
 by his or their servant or servants, bailiff or bailiffs, into the 
 whole or any part of the premises, to enter, and there to distrain, 
 and the distress so taken, to lead, drive and carry away, and the 
 same to expose to sale at public vendue, and out of the moneys 
 therefrom arising to deduct the rent then due and in arrear." 
 Therefore, say these judges, by reason of that provision, the 
 covenants run with the land. Because a purchaser of the land 
 in the last century, gave his vendor a right to take and sell his 
 chattel property in payment of his purchase money ; therefore, 
 a subsequent purchaser a century later, is personally liable to pay 
 the purchase money so secured, merely because it had been so 
 secured ; and all subsequent purchasers for all time to come are 
 to remain equally liable for the same reason. 
 
 There was a time in England, when the appointment by the 
 parties of such a remedy was called a rent-charge. In this state, 
 we denominate such security a chattel mortgage. The provision 
 was identical in substance, and almost in language, with an or- 
 dinary chattel mortgage. The language of the latter is : " It 
 shall and may be lawful for, and the said party of the first part 
 does hereby authorize and empower the said party of the second 
 part, his executors, administrators and assigns, with the aid and 
 assistance of any person or persons, to enter and come into and 
 upon the dwelling house and premises of said party of the first 
 part, and take and carry away the said goods and chattels, and 
 to sell and dispose, of the saxne for the best price they can 
 obtain, and out of the money to retain and pay the said sum 
 above mentioned. 
 
 We have the authority of Judge Denio and the same court, 
 for saying that such a power to distrain and a chattel mortgage 
 are identical. In Van Heusen and Charles v. Eadcliff, 17 N. Y. 
 R., 582, certain premises had been leased, and to secure the rent, 
 the lessee made a chattel mortgage, of his goods and chattels on 
 the premises and of such as he might thereafter place thereon. 
 
59 
 
 As to property thereafter to be placed on the premises, the mort- 
 gage was declared void, as being in conflict with the statute of 
 1846, which abolished distress for rent. Judge Denio said : "If 
 it could be done, I do not see but that the remedy of distress for 
 rent might be restored by the act of the parties in spite of the 
 will of the Legislature." i 
 
 The statute of 1846, applied onlj' to rent, and not to purchase 
 money. Consequently, if such a chattel mortgage for purchase 
 money would have been good before 1846, it would have been 
 good at any time since, and is good now. It follows, therefore, 
 that purchase money, or any other kind of indebtedness except 
 rent, may be changed into rent-charge and thus made to run with 
 the land, by the merely making a chattel mortgage as a security, 
 if the doctrine of the court is to become the law of the state. 
 Eent, as between landlord and tenant, would be the only excep- 
 tion to that rule, for two reasons ; 1. A chattel mortgage reach- 
 ing by its terms property thereafter to be purchased, or placed 
 upon the premises, would, as to rent, be void because in conflict 
 with the statute of 1846 ; and 2. Rent will remain rent-service, 
 and can not, by such a mortgage, be changed to rent-charge. 
 Rent continues to run with the land within the general rule; 
 and every other kind of indebtedness can be made to run with 
 the land within the exception to that general rule ; that is, by 
 connecting with it a chattel mortgage as security. 
 
 The court thus make a distinction between mortgages of land 
 and mortgages of goods and chattels, which is worth remember- 
 ing. Purchase money covenants and other choses in action, 
 secured by mortgage of the land itself, do not run with the 
 land ; secured by mortgage of the goods and chattels on the 
 land, or thereafter to placed thereon, they run with the land. 
 
 Heretofore, purchasers of real estate have supposed it a mat- 
 ter of some consequence to have a search made for mortgages 
 against the lands they were about to buy. If the court be right 
 in this case, it is much more important to search for chattel 
 mortgages. 
 
 It is difficult to realize that such a decision upon such grounds 
 was not intended as a burlesque. The idea that owners of land 
 are personally liable to pay such debts of preceding owners as 
 may have been secured by chattel mortgages, merely because 
 they have been so secured, would be too absurd to admit of 
 serious discussion, were it not for the serious consequences 
 threatened by the decision. Nothing indicative of so great 
 delusion and fatuity has marked the course of judicial action, 
 since the days when women were convicted and condemned to 
 death for witchcraft. By what means and influences such delu- 
 sion may have been produced, certainly would be a curious, and 
 might be a painful subject of inquiry. But this is neither the 
 occasion, nor the appropriate place for such investigation. 
 
 It is enough for the present purpose to show, that the judges 
 
60 
 
 could not have been misled by previously adjudicated cases, nor 
 by the elementary writers. The cases and authorities are numer- 
 ous and uniform, extending from the first judicial decisions of 
 which reports have been preserved, with no exceptions, holding 
 the rule to be inexorable, that to make a covenant run with the 
 land as a burden, there must be a reversion to which the cove- 
 nants were incident, and the covenantee must have owned that 
 reversion at the time the covenants were made. We will refer 
 to some of those authorities in the next number. 
 
 Disregard of the rules of law as established by adjudicated 
 cases, is not, however, the end of this strange decision. It goes 
 further. It undertakes to subvert the express provisions of the 
 statutes. By the statute of 1787, which they acknowledge to 
 have been in force and applicable to the deed, subinfeudation 
 was not only made impossible, but it was expressly provided 
 that every purchaser in fee should hold the lands by the same 
 services and customs by which the person making such sale, 
 before held. 
 
 Now these judges decide that the grantor in this case, had a 
 right to impose new services whereby the lands were to be held; 
 and that every vendor of lands can add services upon alienation, 
 by taking chattel mortgage security for his purchase money. 
 Feudal laws as based upon feudal tenures are deprecated. But 
 feudal laws as based upon chattel mortgages are gravely pro- 
 nounced to exist, and commended to the people of the state. 
 The same kind of oppression which the Norman Conqueror im- 
 posed upon the farmers of England by an array of his armies, 
 the judges of the Court of Appeals propose to impose on the 
 farmers of this state, by an array of chattel mortgage provi- 
 sions made in the last century. 
 
Number X. 
 
 The ■burden «f a covenant will not run with land in any case, except that of land- 
 lord and tenant — Judges carefully abstain from noticing the authorities and 
 elementary writers cited on the argument — Authorities referred to and com- 
 mented on — No pretence made hy the court that the plaintiff had any estate or 
 interest in the premises — Absurdity of a chattel mortgage security attaching 
 covenants to the land as a burden thereupon. 
 
 We have shown in the last number, a concession by the court, 
 that as a general rule it is only between landlord and tenant that 
 covenants can be made to run as a burden upon the land; and 
 that this case is not within that general rule. We have also 
 shown the further concession, that the judgment could not be 
 sustained, except as an exception to that rule; and that the 
 exception was placed upon the fact that certain purchase money 
 covenants were secured by a provision inserted in the deed 
 allowing the covenantee, in case of non-payment, to make the 
 amount due by taking and selling personal property, whereby 
 the covenants were fastened upon the land. 
 
 We now propose to show by the authorities that while the 
 judges were entirely right as to the general rule, they were as 
 entirely wrong as to the proposed exception. 
 
 This subject is ably discussed in notes to Spencer's case, 1 
 Smith's Leading Cases, 22, ei seq. The English annotator 
 has declared that : " Upon the whole, there appears to be 
 no authority for saying that the burden of a covenant will run 
 with land in any case, except that of landlord and tenant ; 
 while the opinion of Lord Holt in Brewster v. Kitchell, that of 
 Lord Brougham in Keppel v. Bailey, and the reason and con- 
 venience of the thing, all militate the other way." 
 
 The American annotators express a similar conclusion. They 
 could find no exceptions. The chattel mortgage security which 
 the court dignify with the name of rent-charge, is not accredited 
 with the power of changing the covenants from personal to real, 
 but the contrary. 
 
 A great many authorities were cited upon the argument on 
 the part of the defendant, all showing that no covenant could 
 be made to burden land, unless the covenantee was at the time 
 of the making thereof, the owner of an estate therein. The 
 judges carefully abstained from any notice of such authorities. 
 
62 
 
 Among the cases cited was Webb v. Russell, 3 Term R., 393. 
 This is a leading case both in point of time and importance. It 
 was an action of covenant upon a lease for a term of 11 years. 
 The lease had been made by both a mortgagor and a mortgagee, 
 while the covenants for rent were made to the mortgagor alone, 
 who of course had no legal estate. The reversion remained iu 
 the mortgagee, who held a lease for 99 years. Subsequently the 
 99 years' lease, and also the estate in fee, came to the plainliff. 
 Thus the reversion of the 11 years' term as well as the reversion 
 of the 99 years, became vested in the plaintiff'. Rent having 
 accrued on the 11 years' lease, she brought her action- to recover 
 it. It was held she could not recover, because the covenant, 
 having been made to a party iu whom there was no reversion, 
 was merely collateral and did not run with the land. That was 
 one point. 
 
 There was another. It was held, that even bad the covenants 
 been made to the mortgagee, who held the reversion, the plaifttifi" 
 could not recover ; for she had taken the reversion of both the 
 11 years' lease and also of the 99 years. Hence, the former was 
 merged in the latter and no longer existed. 
 
 LordKenyon, in giving the opinion of the court, remarked of 
 the covenantee, that he " had no interest in the land of which a 
 court of law could take notice ; though he had au equity of re- 
 demption, an interest which a court of equity would take notice 
 of. These, therefore, were collateral covenants." 
 
 Again, he said : " Considering then that these are covenants 
 entered into with a stranger that do not run with the land, con- 
 sidering also, that the rent is incident to the reversion out of 
 which the term is carved, and that that reversion is gone, it 
 seems to me, witli all the inclination which we have to support 
 the action, that it can not be supported." 
 
 Here was a case which turned upon the point of a lack of 
 reversion in the covenantee ; and even then, would have been 
 equally unsustainable, because the reversion of that estate had 
 been merged in a larger estate. 
 
 It is not possible to conceive of a case where a departure from 
 the law, if such a thing was ever permitted, would have been 
 more called for than there. The plaintiff" was the owner of an 
 estate in lee in the premises. The suit was upon a lease for 
 rents due for the use of the premises. But the covenants had 
 been made to a party, who had only an equity of redemption, 
 and therefore, could not, according to law, be attached to the 
 land. The court, in that case, declined to decide contrary to 
 law. 
 
 That decision is reportetl to have excited much attention at 
 the time. But while it has been repeatedly sanctioned, there is * 
 no reported case which questions its correctness. 
 
 In Stokes v. Russell, 3 Term R., 678, the same court declared 
 themselves satisfied with the decision in Webb v. Russell. The 
 
63 
 
 doctrine that the covenants did not run with the land, because 
 the covenantee did not, at the time, hold the legal estate, was 
 reiterated. 
 
 In Thorn v. Woolcombe, 3 Barnwall & Adolphus, 586, the 
 same doctrine was proclaimed. The action was covenant. The 
 deed containing the covenants was in the form of a lease, for a 
 term of 99 years, provided certain persons lived so long. The main 
 question was whether a reversion was left in the maker of the 
 deed. And no reversion being left, whether the deed was a 
 lease or an assignment. The court. Lord Tenterden, C. J., de- 
 cided that no reversion was left by the deed, but that the grant- 
 or's entire interest passed by it ; " and," said the Chief Justice, 
 " when that takes place, the deed operates as an assignment, 
 whatever be the form of words used in it." He further declared, 
 that " the principles of the law on this subject are plain and the 
 authorities unanswerable." 
 
 In Baker v. Gostling, 1 Bingham N. C, 29, Tindal, C. J., 
 remarked of Webb v. B,ussell, that it excited much attention at 
 the time, but " has long been recognized as undoubted law." 
 
 The rule followed in Webb v. Russell, has been expressly 
 adopted by our Court of Appeals in Dolph v. White, 2 Kernan, 
 296. The latter was an action to recover the amount of a pro- 
 missory note, which the lessee of certain premises had cove- 
 nanted to pay as a part of the rent. The defendant was sued as 
 the assignee of the tenancy. It was claimed that the covenant 
 of the lessee to pay the note, being for rent, was a covenant run- 
 ning with the land and binding the assignee. The court held 
 otherwise, on the ground that the plaintiff was not the owner of 
 the reversion; as there was neither privity of contract nor pri- 
 vity of estate between the plaintiff and the defendant, the 
 defendant was not liable upon the covenants. 
 
 Upon a review of all the cases, the elementary writers have 
 declared it to be a rule to which there are no exceptions, that no 
 covenant can run with land, unless the covenantee at the 
 time of making the covenant, was the owner of an estate in the 
 land. The covenantee must be only the medium of the connec- 
 tion. Owning no estate, he fails toi connect, and the covenant 
 can not reach the land. It must be such a covenant, that when 
 he transfers the land the covenant of necessity goes with it. 
 
 In the notes to Spencer's case, before referred to, the rule is 
 stated as follows : 
 
 "But though it be not necessary that the covenantor should 
 be in any wise connected with the land, it is absolutely essential 
 that the covenantee should, at the time of the making of the 
 covenant, have the land to which it relates." 
 
 The same rule is expressed in" Vyvyan v. Arthur, 1 B. & C, 
 410, by Best, J. He said : " The general principle is, that if the 
 performance of the covenant be beneficial to the reversioner, in 
 respect of the lessor's demand, and to no other person, his 
 
64 
 
 assignee may sue upon it ; but if it be beneficial to the lessor, 
 without regard to his continuing owner of the estate, it is a 
 mere collateral covenant, upon which the assignee can not sue." 
 
 This rule was approved in Allen v. Culver, 3 Denio, 297, and 
 again in Dolph v. White, before cited. 
 
 In the last named case, as we have already seen, the question 
 was whether the assignee of the lessee was liable, not because 
 the undertaking did not concern the land, for it was to pay the 
 note as a part of the rent ; but solely on the ground that the 
 holder of the note was not at the time the owner of the reversion. 
 So in Webb v. Russell, the trouble was, that the covenantee was 
 not the reversioner. The covenantor in each case was the 
 owner of the tenancy, or the lessee, and the covenants concerned 
 the tenancy. Henee we learn that it is always a material ques- 
 tion whether the covenantee has at the making of the covenant, 
 an estate in the land. If he has not, the covenant is merely 
 collateral to the land, and can not be binding upon a third party 
 though he be the assignee of the estate of the covenantor. 
 
 Upon the same principle, it was held in M'Kercherv. Hawley, 
 16 John R., 288, that a mortgagee of premises can not distrain 
 for rent accruing on a lease given by the mortgagor subsequent 
 to the mortgage. Chief Justice Spencer in giving the opinion 
 of the court, said, that : "Distress will in no case lie, unless an 
 action could be maintained for the rent ; and if there be no 
 privity of contract or estate, most certainly no action could be 
 maintained." 
 
 It will be found also equally well settled by authority, that 
 the covenantee must not only have an estate in the premises on 
 the making of the covenant, but that estate must remain vested 
 in him. For if that estate ceases to exist, or passes to some 
 other party, the covenantee can not enforce the covenant. The 
 authorities to this point are also numerous and uniform. It 
 was made one of the points in Webb v. Russell, as we have 
 already shown. 
 
 In Peck V. Northrop, 17 Conn. Rep., 217, a lessor brought his 
 action against his lessee to recover rents. The defendant ad- 
 mitted possession under the lease for three years, and no pay- 
 ment to any one. He offered as a defence, however, a quit claim 
 deed of the same lands made by the lessor about six months 
 after the lease, to a third party. There was no pretencet hat 
 the grantee of the quit claim deed had ever notified the lessee of 
 his title, or claimed the rents. The defence was nevertheless 
 held to be good ; and it was declared that, " a conveyance of 
 leased premises, by the lessor, passes to the grantee the rents 
 thereafter accruing as incident to the reversion; and the lessor 
 can not sustain an action for such rent against the lessee." 
 
 In Nellis v. Lathrop,22 Wend., 121, the lessee after going into 
 possession under the lease, became the owner of the reversion 
 under an execution sale. It was held that the acquisition of the 
 
65 
 
 reversion by the tenant was an extinguishment of the lease, and 
 from that time the tenant ceased to be liable on his covenants. 
 
 In Van Wicklen v. Paulson, 14 Barb., 654, the purchaser of 
 lands subject to a lease, vs^as held to be entitled to the rent, not 
 as an assignee thereof, but as an incident of the reversion, of 
 which, by his purchase, he was the grantee; and therefore, his 
 grantor was decided not to be the " assignor of a thing in action 
 or contract within the meaning of section 399 of the Code." 
 
 In Pollock V. Cronise, 12 How. Pr. Rep., 363, a party who had 
 first leased a part of his farm and then conveyed in fee, except- 
 ing the right so leased, brought his action to recover rent ac- 
 cruing after his conveyance. It was held he could not recover, 
 on the ground that the rent passed to the purchaser notwith- 
 standing the exception in the deed of conveyance. 
 
 In Beebe v. Coleman, 8 Paige Rep., 392, there was a lease for 
 two years, with license to cut the timber and draw it off, at a 
 gross rent of $800, for which a promissory note was made, pay- 
 able at the expiration of the lease. A few days after the lease 
 was made, the premises were conveyed in fee to the plaintiff. 
 It was declared that the right to the note passed to the pur- 
 chaser. Having become the grantee of the reversion, he took 
 the note as an incident of it. 
 
 The books are full of cases of the same character. They all 
 show the rule to be, that to make a covenant run with the land, 
 either as a benefit or as a burden, the covenantee must, at the 
 time of the making of the covenant to him, have held an estate 
 in the land. This rule is of universal application. It has had 
 no exceptions attempted until the decision under review. 
 
 In regard to covenants to run as a burden, so that the owner 
 of an estate in lands, becomes liable merely because he is 
 the owner, there is another rule in addition to the foregoing, 
 to which no exceptions have heretofore been made, namely : 
 there must be two estates, the reversion and the immediate ten- 
 ancy, with each of w.hich the covenants run, with the one as a 
 benelit and with the other as a burden. In other words, the 
 relation of landlord and tenant must exist. 
 
 In the notes to Spencer's case before cited, the rule is stated 
 as follows : 
 
 " Where the covenantor charges land which he himself holds 
 in fee, and there is no privity of estate between the covenantee 
 and the subsequent assignee of the covenantor, it would seem, 
 that although the covenant be one of those which are technically 
 said to run with the land, and which, if entered into by a lessee 
 for life or years, would, in consequence of the privity of estate 
 accruing on the assignment, bind his assignee in favor of the 
 reversioner ; yet, as the covenantee is a stranger to the land, the 
 burden of the covenant will not pass with the land, to one who 
 takes it by assignment from the covenantor. In other words, 
 although the benefit of covenants tyill enure to the as3.ignee8 of 
 5 
 
66 
 
 estates in fee, where there is no privity of contract or estate, the 
 burden will not. 
 
 Ill this respect, it should be remembered, that there is no 
 difference between estates in fee and estates for life or years. 
 Covenants between an assignor and an assignee of any estate, 
 can not be made to run as a burden upon the land. Covenants 
 between lessor and lessee of any estate can be. The difference 
 here, between estates in fee and others, is, that individuals can 
 not lease in fee. It should not be forgotten, that snbini'eudation 
 has been forbidden by statute, for the very purpose of preventing 
 covenants to be attached as a burden upon estates in fee. If 
 they can be so attached by deeds of alienation, that statute has 
 failed, utterly failed of its purpose. 
 
 The doctrine of the two estates, the reversion and the tenancy, 
 with the covenants attached at either side, on the one to the 
 reversion and on the other to the tenancy, is recognized in the 
 following cases : 
 
 Plymouth v. Carver, 16 Pick., 183 ; Wheelock v. Thayer, Id., 
 68 ; Croade v. Ingraham, 13 Id., 33 ; Whitton v. Peacock, 2 
 Bing N. C, 411 ; Pargeter v. Harris, 53 Eng. C. L., 708 ; Hight 
 v. Giossop, 2 Bing. N. C, 125; Hicks v. Downing, 1 L'd Ray- 
 mond, 99 ; Smith v. Mapleback, 1 Term. R., 441 ; Parmenter v. 
 Webber, 8 Taunt., 593 ; Wheeler v. Baker, 3 Salk., 10 ; Palmer 
 V. Edwards, 1 Dough, 87, n. ; Rankin v. Newsam, 1 Hds. & Br., 
 70; Pawcett v. Hall, Ale. & Nap., 248, 253 ; Plu(k v. Digges, 
 2 Huds. & Br., 1; 1 Piatt on Leases, 9-18; Pluck v. Digges, 
 2 Dow. & Ch, 180; Canham v. Rust., 8 Taunt., 227 ; Pascoe v. 
 Pascoe, 3 Bing. N. C, 398 ; Hurd v. Curtis, 19 Pick., -^59. 
 
 The last case arose upon covenants made between four several 
 owners of lands, in regard to regulating the use of water which 
 was common to all the premises. The plaintifl' was one of the 
 parties. The defendant was the assignee of another. The plaintiff 
 sought to recTiver on the ground that the covenants run with the 
 land. It was agreed that the defendant had notice of the cove- 
 nants before the purchase. The only point of the case was, 
 whether the covenants run with the land as a burden upon the 
 assignees of the covenantors. After elaborate argument, it was 
 held that they did not run, and the defendants as assignees were 
 not liable. Wilde, J., who delivered the opinion, after showing 
 that there was no privity of estate between the parties, said of 
 the covenant* : 
 
 " They are mere personal covenants, according to all the 
 authorities, and can not be otherwise construed, without deter- 
 mining that all covenants concerning lands are real covenants, 
 and binding on the assignee, however remote ; which certainly 
 can not be maintained, either upon authority or principle. Such 
 an extension of the obligation of covenants might be productive 
 of great mischief and confusion of rights and obligations of the 
 purchasers and owners of real estate." 
 
67 
 
 Taylor v. Owen, 2 Black. R., 301, and Keppfel v. Bailey, 517, 
 are similar cases. There are many others of the same character. 
 But as the general rule is not denied, it is not necessary to pur- 
 sue the authorities upon that point any further. There is no 
 pretence made by the court, that the covenantee in this case had 
 any estate or interest in the -premises, or that anything of the 
 kind is vested in the plaintifi'. There is no pretence that the 
 covenant, of itself, became attached to the land. The adhesive 
 quality is charged entirely to the distress or chattel mortgage 
 security provided by the appointment of Jacobus Deitz. There 
 is no other pretended ligament between this covenant and the 
 land. The ground of the decision is, that that provisional 
 remedy takes the covenants out of the general rule, withm which 
 it is conceded that the defendant is not liable, and places them 
 within an exception to that general rule, where it is claimed the 
 defendant is liable. 
 
 Let us examine the proposition as a question of authority. 
 
 In Hope V. Booth, 20 B. C. L. Rep., 574 — a case before cited, 
 certain purchase money covenants were by agreement to be re- 
 garded as rents, and were so named in the instrument. It was 
 further provided that the vendee " should be considered as a 
 tenant of the said lands to the vendor from the date thereof, at 
 the yearly rent of ^640 10s, payable on the 16th of April and 16th 
 of October, in every year ; and it should be lawful for the vendor, 
 his heirs and assigns, to enter and distrain, and to sell and dis- 
 pose of the distress, or otherwise deal with the same, in like 
 manner as in distresses for rent reserved by lease." One-half 
 3'ear's rent became due and was collected by distress. Another 
 became due, and an action of covenant was brought. The ques- 
 tion was, whether the covenant was to be enforced by the laws 
 peculiar to landlord and tenant, or only those which apply as 
 between vendor and vendee. The court were unanimously of 
 the opinion that it was not taken out of the latter class by such 
 contract provisions, and so decided; Lord Tenterden, C. J., 
 giving the opinion. 
 
 Sacket and Reed v. Barnum, 22 Wend., 605, was a similar case. 
 It was there agreed " that the the relation of landlord and tenant 
 shall and does henceforth exist between the parties, to all in- 
 tents and purposes, and that the parties of the first part may 
 collect and recover all monej's becoming, or to become due on 
 this contract, of and from the party of the second part, hy distress 
 or otherwise, as for so much rent due." 
 
 The question was whether the vendors in that case came 
 within the provisions of 1 R. S., 767, § 12, which provides for 
 the payment of rents to a landlord in preference to an execution 
 creditor of the tenant, when execution has been levied upon the 
 personal property of the latter. 
 
 If it were possible for vendor and vendee to be changed to 
 lessor and lessee, and purchase money covenants to yents, by 
 
68 
 
 agreement of the parties, that was a case where such change 
 must have been accomplished. But it was held otherwise. 
 
 In delivering the opinion of the court, Judge Bronson said the 
 payments were not rent, but " the price of the land itself." He 
 further remarked, that " Whatever may be the legal effect of 
 this agreement, as between the parties to it, I think they could 
 not, as against third persons, turn the price of the land itself 
 into rent, and thus acquire a preference over the execution 
 creditors of the vendee. The goods were not upon demised 
 premises, and there was no rent due, within the meaning of the 
 statute." 
 
 A similar ruling will be found in Everston v. Sutton, 5 Wend., 
 281 ; Roach v. Cosine, 9 Wend., 227 ; Simms v. Humphrey, 4 
 Denio, 185 ; Cornell v. Lamb, 2 Cow., 652. . 
 
 These cases and many others were brought to the attention of 
 the court by the counsel for the defendant upon the argument 
 of the case under review. Neither their application, nor their 
 controlling character against the plaintiff, are denied by the court. 
 No such denial was made by the counsel for the plaintiff. No 
 such denial can be made with any show of reason. The transac- 
 tion between old Stephen Van Rensselaer and Jacobus Deitz was a 
 sale; the payments, the purchase price ; the defendant was a third 
 party and a stranger. He could not be made liable without treat- 
 ing the sale and payments as a lease and its rents. As a ques- 
 tion of authority, there was no doubt, that the payments could 
 not be regarded as rent so as to fasten liability upon the defend- 
 ant. The decision just as much lacks authority to support it, as 
 it lacks common sense and principle. The idea that purchase 
 money covenants can be changed to rents so as to run with the 
 land as a burden upon the owner, by merely attaching to them 
 a kind of chattel mortgage security, was original with the court, 
 and must, therefore, make its way, in the world or out of the 
 world, upon its own merits. 
 
Number XI. 
 
 Both Denio and Selden decide against subinfeudation, or the right of individuals 
 to make leases in fee — But because of the distress clause, they declare the cove- 
 nants a valid " rent-charge" — Hargrave's note to Littleton's section, relied upon 
 by them, shows their entire misunderstanding of Littleton — Neither Littleton 
 nor Hargrave commit the logical absurdity of Judge Denio, viz : that a rent-ser- 
 vice is a rent and a rent-charge is a rent, and therefore, they are just alike in 
 their remedies— The case of Pluck v. Digges was direct authority that our sta- 
 tutes were only applicable to rent-service — The strange conclusions of Judge 
 Denio — Conflict between Denio and Selden — Discussion of points by Denio not 
 made by defendant's counsel — Strange misapprehensions of Judge Denio — 
 Examination of conflict between Denio and Selden about the statute of 1805, and 
 the Code of 1848 — Judge Denio concedes that the plaintifi"s Judgment could 
 not be sustained without the statute of 1805, while Judge Selden holds that that 
 statute has no application to tM case — Judge Denio, in one mood, the champion 
 of freedom, in the next, the genius of despotism. 
 
 In the last number, we have presented some of the authorities 
 against the plaintiff which the judges have not discussed. We 
 now propose to examine those which they have discussed. 
 
 The reader should bear in mind, that both judges, Denio and 
 Selden, decide against subinfeudation, and consequently declare 
 the covenants before them to be purchase money covenants, and 
 not rent, in the proper sense of that term. But because of the 
 distress clause and the absence of any thing like a reversion or 
 estate, either in the grantor or in the plaintiff, they exclaim : 
 " It was, however, a valid rent-charge." Whereupon Judge 
 Denio quotes, from Littleton and others, a few short paragraphs 
 descriptive of a rent-charge and of some of its peculiarities. 
 Nothing occurs in all this, requiring particular notice, except, 
 perhaps, so far as relates to note 235 of Mr. Hargrave to Little- 
 ton (Co. Litt., 143, b). A fuller statement of that note than 
 Judge Denio makes, shows clearly that had he followed its 
 authority, he could never have made the decision he did. Mr. 
 Hargrave there says : "After the statute of quia emptores, grant- 
 ing in fee-farm, except by the king, became impracticable ; 
 because the grantor parting with the fee is by operation of that 
 statute without any reversion, and without a reversion there 
 can not be a rent-service, as Littleton himself writes in section 
 216. Yet I have seen a modern grant in fee of a large estate in 
 
70 
 
 Ireland reserving a perpetual rent of great value. But such 
 rent, considered as a fee-farm rent, I thought clearly void. 
 However, as in the case I allude to, the conveyance contained a 
 power for the grantor and his heirs and assigns, to distrain for 
 the rent when in arrear, and also a power to enter and receive 
 the profits till all arrears should be paid, the rent might be good 
 as a rent-charge ; and so, on being consulted, I held it to be." 
 Mr. Hargrave also declares, in the same note, that, " the term 
 fee-farm is not properly applicable to any rents except nnt- 
 service." 
 
 The meaning of this note is unmistakable. In declaring such 
 rents, when regarded as fee-farm, or rent-service, to be void, the 
 learned annotator only meant that they carried with them none 
 of the remedies peculiar to rent-service. That is, such rents, 
 neither run with the land so that an assignee would be liable in 
 covenant, nor could the owner of the rents by way of enforcing 
 payment, put an end to the estate by re-entry, and thus be enti- 
 tled to an oidinary action of ejectment. 
 
 In declaring the rent good as a rent-charge, he as clearly only 
 meant that the grantor might collect by availing himself of the 
 remedies appointed by the partiSs. That is, he might distrain 
 for the arrears, or enter and take the profits of the land until 
 the arrears were paid. 
 
 But there is no authority in that note, to uphold Judge Denio's 
 logical formula upon which alone his opinion rests, that a rent- 
 service is a rent, and a rent-charge is a rent, and therefore they 
 are just alike in their remedies. It clearly did not occur to Mr. 
 Hargrave, that he could save that large Irish estate by any such 
 brilliant logical evolutions. 
 
 Next in order in Judge Denio's argument, is his disposition 
 of Pluck V. Digges, in the English House of Lords, 2 Dow. & 
 Clark's Pari. Rep:, 180. 
 
 He says : " Tha,t case turned wholly upon a question of plead- 
 ing." if, by that', he means that the case turned upon the form 
 or manner in which the facts were stated, and not upon the 
 merits, he has misunderstood the case. And he was equally in 
 error in supposing that it was any part of the purpose of the 
 action to determine whether the provision of distress contained 
 in the instrument could authorize the lessor to do what the lessee 
 had agreed lie might do. 
 
 There is a true statement of the purposes and point of that 
 case in 1 Piatt on Leases, 13, 14. That author says of it ; 
 
 "A lease having been granted for three lives, with a covenant 
 for perpetual renewal, the parties claiming under it, by inden- 
 ture released the premises to one Pluck, from whom the plaintiff 
 derived his title, for the same lives as those on which the origi- 
 nal lease was held, though the fact did not appear on the face of 
 the deed of release. A rent was reserved, and the deed con- 
 tained a provision for distress and entry on non-payment, and a 
 
71 
 
 covenant for perpetual renewal, provided that the Uvea to be 
 added should be the same as those added to the original lease. A 
 distress having been taken fbr an arrear of rent, upon replevin, 
 the defendants pleaded their title by a general avowry under the 
 Irish statutes. 25 Geo. IT, c. 13. The Court of Common Pleas 
 decided in favor of the defendants, notwithstanding the plain- 
 tiff's argument that he was entitled to a verdict on the plea of 
 non4enuit, as it appeared by the evidence that the persons in 
 whose names the defendants had avowed, had not any reversion 
 in the premises at the time of making the distress. The case 
 then came, on a writ of error, before the Irish Exchequer, 
 where the judgment of the Common Pleas was affirmed by six 
 judges against four ; the former maintaining that the release to 
 Pluck operated as a lease, and that a reversion was not necessary 
 to the relation of landlord and tenant ; the latter affirming that 
 the deed operated as an assignment, and that the relation of 
 landlord and tenant could not subsist without a reversion. 
 Thence th? case was carried to the House of Lords, where the 
 judgment of the court below was reversed. Lord Tenterden, 
 after noticing the facts, and the fao^ities afforded by the statutes 
 to a landlord, of avowing without setting forth his title to the 
 land, and speaking of the deed of release as an assignment of 
 the whole interest, observed, that the exemption was not by 
 either of the statutes permitted in the case of a rent-charge on 
 land, payable to a person who had no reversionary interest in 
 the land ; that the rent in the case before the court could not be 
 considered as rent-service, or as rent reserved by a landlord, and 
 payable by his tenant ; that there could not be such rent where 
 there was no reversion ; and, therefore, that there was not in 
 the case a rent of the description which came within the provi- 
 sions of the statute." 
 
 It thus appears, that in that case, as in the case of Van Rens- 
 selaer V. Ball, the statute which was brought in question, applied 
 only where the relation of landlord and tenant existed. It was 
 agreed that there was no reversion. It was then contended on 
 the one side, that a reversion was not necessary to landlord and 
 tenant; while on the other, it was insisted, that it was necessary. 
 One of the four dissenting judges in the Irish Exchequer Cham- 
 ber, expressed himself upon that point as follows : " It appears 
 to me, therefore, that the intention of the parties is not to pre- 
 vail against the rules of law, that where a lessee departs with 
 his whole interest, be that interest what it may, the operation 
 and effect of it is, that it is an assignment and not a lease." 
 
 This view of the case was concurred in, unanimously, by the 
 House of Lords. As an authority upon the ejectment side of 
 the question, it was directly applicable. Ejectment could be 
 maintained only by virtue of the statutes. The Supreme Court 
 had decided that : •' This statute only applied to cases where 
 the conventional relation of landlord and tenant existed." (See 
 
73 
 
 Van Rensselaer v. Smith, 27 Barb., 176.) That court held the 
 statute quia emptores not in force and the relations of landlord 
 and tenant to exist. The Court of Appeals decide the statute to 
 be in force and the relations of landlord and tenant not to exist. 
 The case of Pluck v. Digges was therefore a direct authority 
 that our statutes were applicable only to rent-service and could 
 not bo applied to sustain the judgment in the case before the 
 court. The reversal of the Irish decision by the court of ulti- 
 mate authority in England, was regarded as settling the question 
 that a reversion is necessary to the relations of landlord and 
 tenant ; in other words, that a landlord without land was an 
 anomaly which the law would not tolerate. It must be regarded 
 as equally conclusive, that the remedies peculiar to landlord and 
 tenant, whether appointed by the statutes or by the common 
 law, can not be extended to parties out of that relation. Even 
 in the Irish cases, it was conceded by those who contended that 
 a reversion was not necessary to a lease for life or for years, 
 that it was necessary to leases in fee, by reason of the express 
 provisions of the statute of quia emptores. 
 
 The English cases upon this point will be found elaborately 
 examined in 1 Piatt on Leases before cited. There is nothing 
 in the' gjithorities to countenance the reasoning, that because a 
 rent-charge is a species of rent named in the books, therefore a 
 rent-charge is to be treated to the same remedies as a rent- 
 service. 
 
 The conclusion to which Judge Denio comes, in connection 
 with the authorities cited by him, falls entirely short of sustain- 
 ing him. He states his conclusion as follows : " These author- 
 ities establish the position that upon the conveyance under 
 consideration a valid rent was reserved, available to the grantor 
 by means of the clause of distress." 
 
 Supposing him to be right in that statement, how is the 
 plaintiff 's judgment thereby aided 1 By proving the remedy by 
 distress which the contract of the covenantor gives, how does, 
 he thereby prove a right to covenant against an assignee which, 
 if it exist at all, exists only as a remedy of the common law 1 
 If A contracts a personal indebtedness to B, and to secure it, 
 agrees that B may enter upon his premises and take and sell 
 personal property, how does B thereby acquire a right to sue 
 because A may have assigned to the premises to which his 
 agreement of entry referred ? It will be seen, that there is no con- 
 nection between the conclusion and the premises. The question 
 was no-t as to the right to distrain, but as to covenant. Judge 
 Denio decides the defendant liable to covenant, and as a reason, 
 says the grantor might have availed himself of the clause of dis- 
 tress. That is, because old Stephen Van Rensselaer might have 
 taken the personal property of Deitz, therefore young Stephen 
 can maintain an action against Hays. Such is the argument 
 upon which Hays is held to be liable. 
 
73 
 
 The next question, in the order of the judicial argument, is the 
 one of the descendibility of certain kinds of property. Rent- 
 service is said to descend, because it is attached to the reversion. 
 The reversion or estate in the land descends and the rent goes 
 along as an incident. That is a proposition readily understood. 
 But it had nothing to do with the case before the court. The 
 payments there in question could not get down as incidents of 
 the reversion, for there was no reversion to go with. 
 
 As mere covenants. Judge Denio admits that they could not 
 descend, but would be subject to action only by the executors. 
 But .because the covenantor had agreed that the covenantee 
 might enter upon the premises and take and sell personal pro- 
 perty until he had made arrears, therefore, says Judge Denio, 
 these payments descend. His proposition is, not that purchase 
 money covenants descend, hut that purchase money covenants 
 secured by chattel mortgage take that course. Secured by 
 mortgage upon the real estate, they go to the executors. It is 
 only the chattel mortgage security, which can give to them the 
 descending tendency. 
 
 It is not difficult to perceive that Judge Denio was here again 
 misled by a process of reasoning peculiar to every step of his 
 argument. His thoughts seem to have run in this way. If this 
 was a rent-service it would descend. Being a rent-charge it can 
 not do otherwise ; because a rent-service is a rent ; and a rent- 
 charge is a rent. 
 
 He cites from some of the old English authorities to prove 
 that a rent-charge may descend. Here again, he is misled by 
 overlooking the fact, that he was not dealing with that kind of 
 interest which was there called a rent-charge. We have no sta- 
 tutes giving effect to rent-charges as they had in England. 
 Here, we can secure annual payments by chattel mortgage; but 
 we can not change their character by merely adding such 
 security. 
 
 He is equally in error in his reference to Van Rensselaer's 
 executors v. Platner's executors, 2 John, cases. The payments 
 there were regarded as a rent-service. The only reason given 
 why the executors could not, and the devisees could maintain 
 the action, was, that the privity of estate, on the death of the 
 testator, " devolved on the heir or devisee," and not on the exe- 
 cutor. That is, the reversion, the proprietorship of the' land, 
 descended or passed to the devisee and the rents went along as 
 an incident. It will not be pretended that there is privity of 
 estate connected with a rent-charge. The fact that, in another 
 case, it is cajled " a fee-farm or rent-charge," does not help his 
 construction. At least, it makes as much authority against him 
 as for him ; for, as we have before shown by Mr. Hargrave, a 
 fee-farm rent is a rent-service. 
 
 But we will not pursue this question of descents further. 
 There is nothing in it material to the case. No such point was 
 
74 
 
 made by counsel on the argument. It was not denied, but tbat 
 the plaintiff was the owner of the covenants, and had the same 
 right to sue Jacobus Deitz or any one else, which the covenantee 
 might have had. 
 
 Both Judges Denio and Selden labor to show, that the plaintiff 
 was the assignee of the covenants, and had a right to sue in his 
 own name. No small part of their respective efforts is devoted 
 to that labor. Tliere is this difference between them: Whil& 
 Judge Denio carries on the discussion,'as though it was one of 
 the chief points made by the defendant, Judge Selden frankly 
 states to the contrary. He truly says : that " It seems to be con- 
 ceded, that the objections to the assignability of such a covenant 
 on the part of the grantor, have been removed in this state, by 
 the provisions of the Code. Still it may serve to elucidate the 
 subject, to see how the law stood in that respect independently 
 of those provisions." 
 
 He had previously stated in regard to those covenants : that 
 "Their validity as between the original parties is not to be 
 denied, but it is contended, that they do not, at least did not, 
 prior to the Code, pass to tbe assignees of the grantor, so as to 
 enable such assignees to sue in their own names ; nor follow the 
 land into the hands of subsequent grantees, so as to subject them 
 to the duty of payment. These questions as to the right of 
 assignees of the rent to sue, and the obligation of assignees of 
 the land to pay, depend upon different considerations, and should 
 therefore be kept distinct. The former should be considered as 
 though the action was against the original grantee who made 
 the covenant, and the latter as though it was brought by the 
 grantor himself, to whom the. covenant was made." 
 
 This is a very clear and appropriate statement of the proposi- 
 tions. The reader should bear in mind, however, that the de- 
 fendant made no question upon the ai'gument, " as to the right 
 of the assignees of the rent to sue." 
 
 The only point labored on the part of the defence, was, that 
 no obligation rested upon the defendant in regard to the cove- 
 nants in question That part of the argument of the court, 
 therefore, which pertains to the first proposition, was uncalled 
 for, and is immaterial ; unless, as is intimated by Judge Selden, 
 there may be something in it which may serve to elucidate the 
 second proposition. 
 
 Judge Denio gravely discusses the question, that when the 
 grantor of a rent-charge covenants to pay it, and the rent-charge 
 so granted is assigned, the assignee takes the covenant and may 
 sue the covenantor thereon That is, if A grants to B an annual 
 sum, and covenants to pay it, and B assigns the sum so granted, 
 his assignee may sue A on the covenants. 
 
 Here again the learned judge musl; have strangely misappre- 
 hended the matter before him. Had the case involved such a 
 grant, and had the plaintiff, as assignee thereof, sued Jacobus 
 
75 
 
 Dietz upon his accompanying covenants, Deitz might have raised 
 the question here discussed by Judge I)enio. But if instead of 
 suing Deitz, the plaintiff. had sued Robert Hays, or any other 
 stranger to the transaction, the question then would be, bow 
 Hays could be made liable to fulfill the covenants of I)eitz. 
 Instead of discussing that question. Judge Denio proceeds to 
 inquire whether the plaintiff, in such supposed case, could have 
 maintained covenant against th6 covenantor himself. After 
 balancing the authorities on the opposite sides, he announces 
 his conclusion, that the plaintiff, according to the English laws, 
 could not have maintained covenant even against Deitz the 
 covenantor, much less against the defendant, who was a stranger 
 to the covenant. 
 
 In pursuing that part -of the discussion he quotes from Lord 
 Holt in Brewster v. Kidgill, 12 Modern, 166, and from Lord 
 Ellenborough in Milnes v. Branch, 5 Maule & SeL, 411. Lord 
 Ellenborough said, that aside from Lord Holt's dictum, he 
 did not find any authority to warrant the position that such a cove- 
 nant run with the rent. Judge Denio then notices Sir Edward 
 Sugden's opinion in favor of Lord Holt's view. Finally he con- 
 cludes, that as Sugden was a man of great learning, and after- 
 wards became Lord St. Leonards, " Lord Chancellor of England," 
 he should fall in with him in opinion, were it not for the case of 
 the Devisees of Van Rensselaer v. the Executors of Platner, 2 
 John. Ca., 26. He thinks that case turned the scale here in favor of 
 Lord Ellenborough's view ; and that the plaintiff could not have 
 maintained covenant even against the covenantor, but for our 
 statute of 1805 ; which statute, as he claims, again turned the 
 advantage from Lord Ellenborough to Lord Holt ; and would 
 enable the plaintiff to maintain an action, not against tlie defend- 
 ant, but against the covenantor. 
 
 It is thus evident that Judge Denio, in this part of his argu- 
 ment, entirely lost sight of the question before him. There may 
 possibly be, however, some light reflected therefrom to elucidate 
 the real question. It may be worth something to know, that at 
 common law, the plaintiff' could not have maintained an action 
 even against Deitz. 
 
 While both Judges Denio and Selden agreee that no action, 
 even against the covenantor, could have been maintained except 
 by virtue of statutes enacted long since the covenants were 
 made, they nevertheless disagree as to which statutes have 
 afforded the remedy. Judge Denio attributes the effect to the 
 statute of 1805. Judge Selden, to a certain section of the 
 Code. 
 Let us examine this conflict between them. 
 In 1788 the Legislature of this state re-enacted the English 
 statute commonly known as 32 Hen. VIII, c. 34. This enabled 
 grantees of reversions to maintain the same actions as the 
 grantors might have maintained That is, when a man sold his 
 
76 
 
 farm which was already under a lease, the purchaser could use 
 the same remedies to collect the rent accruing after his purchase, 
 as his vendor might have had. 
 
 There were some old leases in fee made under the colonial 
 government. The case of The Executors of Van Rensselaer v. 
 The Executors of Plataer, before cited, was an action upon a 
 lease of that kind. In 1805, a doubt was raised, whether the 
 statute of 1788 applied to leases in fee. To remove that doubt, 
 the Legislature passed the act of 1805, declaring that the act of 
 1788 should be construed to include leases in fee. 
 
 That is the statute which Judge Denio undertakes to construe 
 so as to include, not leases in fee, but assignments of such leases. 
 He first labors to prove that there were no such leases and could 
 have been none legally made, either under the colonial or the 
 state government, by reason of the prohibition thereof by the 
 statutes ; then he reasons, that because there were no leases in 
 ffee, therefore the statute must apply to assignments of such 
 leases. He is forced to admit, however that the language of 
 the statute of 1805, must be changed or it will not apply. The 
 power to change, he assumes to acquire bj' the power of his 
 reasoning. 
 
 Judge Selden refuses to adopt such a construction. He agrees 
 with Judge Denio that the statute of 1805, as it reads, applies to 
 leases in fee only. Tt could not apply in the case before him, 
 because there was no reversion in the maker of the deed, and 
 the plaintiff was not therefore the grantee of the reversion. He, 
 Judge Selden, would not consent to read the act of 1805, with 
 part of its language stricken out. Hence he declined to apply 
 it to deeds of assignment. He agreed with the court in the De 
 Peyster case, that such leases might exist if made before 1776, 
 and come within the provisions of the act, and, therefore, no 
 excuse could be found in that direction, for mutilating the 
 statutes. 
 
 While upon this part of his labor Judge Denio makes a frank 
 confession. He says : '" It was assumed that before the passage 
 of our statute of tenures, a reversion did arise upon a grant of 
 lands in fee, and that the act of 1805 should be understood as 
 limited to conveyances executed prior to 1787." In answer to 
 this he says: "It was in part to furnish an answer to that sug- 
 gestion that I have taken the pains to show, that there was never 
 a period in this state when conveyances between individuals 
 created a tenure, except in the special c ises of a grant from the 
 Crown of u power to erect a manor." 
 
 There is something more implied in this confession than is 
 expressed 
 
 It is a direct concession, that the plainlilf 's judgment could 
 not be sustained, without the statute of 1805, nor with that sta- 
 tute, unless its language was materially changed. Hence, as he 
 not only plainly but rather boastingly confesses, the great effort 
 
77 
 
 of his argument, was to prove that leases in fee were prohibited, 
 
 _as well before as after the statute of 1787 ; and with no other 
 
 r end in view, than to contrive an excuse to construe the statute 
 
 ', in violation of its express language. ; He was then laying the 
 
 "foundation of the reasoning, which, in his opinion, was to save 
 
 "the Patroon." Upon that foundation, the whole strategy of 
 
 his argument rests. There having been no leases in fee to which 
 
 the statute can apply, as it reads, therefore, as his logic runs, 
 
 the courts are at liberty to apply the statute, as it does not read, 
 
 to assignments of such leases. 
 
 In a previous part of his argument, and in his labor against 
 feudal tenures. Judge Denio avowed his ulterior purpose to be, 
 to avoid a position, which "would lead to the most absurd con- 
 clusions ;" namely, that of applying to " early conveyances, 
 under which many titles are still held," " the law which pre- 
 vailed in England during the first two centuries after the Con- 
 quest," and which would sustain actions like the one before the 
 court.— 19 JV. F. Rep., 74. 
 
 Now he avows that effort to have been made, not for the pur- 
 pose of averting feudal oppression from a part, but for the 
 purpose of imposing it on the whole. In the first mood, he was 
 the avowed champion of freedom. In the second, he is the 
 boasting genius of despotism. 
 
 This conflict in his own exposition of himself and of his pur- 
 poses. Judge Denio should explain, if he has regard for reputa- 
 tion, even for consistency. The last phase in which he shows 
 hiuiself, might present a question for the casuist, whether his 
 course was more marked by the ingenuity of perversion, or the 
 ingenuousness of confession. 
 
Number XII. 
 
 Judge Strong differs from his associates, and is of opinion that plaintiff has no right 
 to recover, except he have a subsisting estate or interest in the land — The case 
 of Brewster v. Kidgill, and Roach v. Wadham explained, and the perversions of 
 Denio and Selden pointed out — These, together with the case of Hemingway t. 
 Fernandes, which was upon a lease, are all the cases relied upon hy Denio and 
 Selden to show any alleged controversy upon the question in the English courts — 
 These judges have utterly failed in showing any controversy — The opinion of 
 Sir Edward Sugden is that a covenant to pay a rent-charge does not run with the 
 land — The extraordinary effect attributed by Judge Denio to the statute of 1805 — 
 Judge Denio refers to the older authorities in this state; the answer is, that they 
 weredecidedupontheassumption that the statute gMi'a emptores vias not in force 
 here — The doctrine of accumulation of covenants and conditions upon the same 
 land announced by Denio and Selden — Is a purchaser of mortgaged premises 
 personally liable to pay the incumbrance ? Yet such in effect is the startling 
 doctrine enunciated by Denio and Selden — The manorial contest at an end — 
 The courts guilty of usurpation — Legislative power. 
 
 The court having discussed, through Judge Denio, the assign- 
 ability and descendibility of the covenants before them, neither 
 of which were questions in the case, then take up the real ques- 
 tion, namely, whether the' defendant was or was not liable. 
 Judge Denio starts that question in this way. He says : "Here 
 again there has been some controversy in the English courts." 
 This remark is calculated to beget the impression, that the Eng- 
 lish courts had sometimes decided that a purchase money cove- 
 nant or any other, if secured by a clause of distress, might run 
 as a burden upon the land, so as to make an assignee of an estate 
 liable to an action of covenant thereon. 
 
 In the preceding numbers, we have noticed the leading 
 authorities of England as well as of this country, in regard to 
 this question. It is not necessary to I'epeat here, further than 
 to say, that the following points are established without conflict. 
 First, no covenant can run with land, either as a benefit or as a 
 burden, unless the covenantee was, at the time the covenant 
 was made, an owner of an estate in the land. Second, no 
 covenant can run with the land as a burden, except as between 
 landlord and tenant. The parties to such an action, must each 
 own an estate, tlie one held of the other ; the one the tenancy 
 and the other the reversion of that tenancy, as they are called 
 
79 
 
 in regard to each other. Judge Strong, speaking of those prin- 
 ciples, says : " They seem to have been definitely settled." 
 Again he says : " In the view which I take of the controversy, 
 its determination depends entirely upon the question whether 
 the plaintiffs have a subsisting estate or interest in, or some right 
 to the lands which would enable them to recover such lands, 
 or damages by reason of the non-payment of the specified 
 rents." 
 
 All of the rest of the court, decided that the plaintiff had no 
 subsisting estate or interest in the lands ; and thus Judge Strong's 
 position and opinion were in effect against the plaintiff. Such 
 being the position of the plaintiff. Judge Strong admits that the 
 whole thing is definitely settled against his recovery. Judge 
 Denio and all the rest of his associates, except Strong, say, not 
 that it is definitely settled against him, or definitely settled for 
 him, but there is a controversy about it. Having alleged a con- 
 troversy in the English courts, they were bound to show it. 
 
 Now we are prepared to understand how the majority of the 
 coiirt undertakes to make out, as a question of authority, the 
 defendant's liability to pay the purchase money covenants of 
 Deitz ; and how they have failed in the undertaking. 
 
 They pass in silence the unbroken array of authorities where 
 the questions involved were decided against them. That is not 
 all. The manner of the silence is more remarkable than the 
 silence itself. They attack the dictum of Lord Holt in Brewster 
 V. Kidgill — a case that was not cited bj'' the defense — as though 
 it was the chief if not the only case in the English books, which 
 was in the way of the plaintiff'. Why did they not notice Ran- 
 dall V. Rigby, 4 Meeson & Welsby, 130 ? There was a grant in 
 fee and the grantee's covenant to pay a yearly rent of ^£63. A 
 clause of distress was, added. One of the judges said; "No 
 doubt this covenant is collateral, or in gross in one sense, that 
 it does not run with the land." Counsel on both sides so far 
 agreed. All the other judges concurred. Why have they not 
 noticed the numerous other cases of the same character 7 
 
 In Brewster v. Kidgill the action was not covenant. The 
 defendant's personal liability was not in question. It was not 
 even claimed by the plaintiff'. There had been a loan of £800 
 on the one side, and in consideration thereof a grant of a rent- 
 charge of £4:0 per annum on the other, with the right to enter 
 and take personal property, as a remedy appointed for its col- 
 lection. The defendant claimed that the plaintiff was not 
 entitled so to collect the whole ^640, but that the amount should 
 be abated by the' deduction of certain annual taxes. That abate- 
 ment was the question before the court. There was no other. 
 In giving an opinion, Lord Holt declared that the covenant to 
 pay a rent-charge did not run with the land. None of his 
 associates questioned this doctrine. In the notes to Spencer's 
 Case, 1 Smith's Leading Oases, before' cited, the English annota- 
 
80 
 
 tor remarks of it : " So that the real difference between Lord 
 Holt and the three judges appears to have been, not whether an 
 action of covenant could be maintained against the defendant as 
 assignee of the land, but whether that which Lord Holt con- 
 sidered a covenant was not, in reality, part of the land ; for if it 
 were, the plaintiff was entitled to judgment beyond all dispute, 
 the action not being one of covenant, but a feigned issue to as- 
 certain the net amount of the rent-charge. So that, considering 
 the case in this light, there is Lord Holt's opinion, that a cove- 
 nant to pay the rent-charge wonld not run with the land ; an 
 opinion from which none of the other judges dissented." The 
 American annotators say : " There can be no doubt, on compar- 
 ing together the different reports of the case, that the other 
 judges agreed with Holt, that the covenant was not binding on 
 the assignees of the land as a covenant." 
 
 That case has been so understood by courts and lawyers until 
 the decision under review. It is too late now to give it a differ- 
 ent version. 
 
 The next case cited by Judge Denio is Roach v. Wadham, 6 
 East., 289. He says it " was covenant to recover the arrears of 
 a rent-charge reserved upon a conveyance in fee to uses, and the 
 defendant v, as sought to be charged as the assignee of the 
 grantee of the land. The answer made to the action was, that 
 the defendant did not take as assignee, but under an appointment 
 created by the original conveyancee." It was held that the 
 defendant was not liable in covenant. 
 
 Judge Denio says of this case : " It was tacitly assumed by the 
 counsel for the defence," and by the Judge who delivered the 
 opinion, " that if the defendant did take as assignee he was liable 
 for the rent." If he means by a tacit assumption, no assumption 
 at all, he is right. If he means anything else, he is wrong. 
 
 Judge Selden ventures further in his assertion. He says: "It 
 was agreed by counsel on both sides, as well as the court, that 
 if the deed to the defendant was intended by Watts as a convey- 
 ance of his estate in the land, then the defendant as his assignee 
 would be liable." What Judge Denio calls a tacit assumption, 
 Judge Selden makes an express agreement. Both these gentle- 
 men are entirely mistaken. Not only is there no such thing in 
 the case, but on the contrary, Mr. Abbott, as counsel for the 
 defence, expressly contended, "that the covenant for the payment 
 of the rent-charge did not pass with the -estate ; though the 
 plaintiffs were not without remedy ; for they might distrain or 
 re-enter, or sue Watts upon the express covenant." He no 
 where admitted that they might have sued the defendant upon 
 the covenants of Watts, under any circumstances. 
 
 Judge Selden cites Hemingway v. Pernandes, 13 Sims., 284, 
 as an authority that a covenant may run with the land when 
 made between vendor and vendee. It was a case upon a lease 
 and not upon a deed of assignment. The questioa raised and 
 
81 
 
 decided was different from the question before the court. There 
 was no analogy or similitude between them. 
 
 Those are all the cases relied upon by the court, to prove their 
 alleged controversy in the English courts. It requires no argu- 
 ment to show that they have utterly failed in making good their 
 assertion. And yet Judge Selden says, by way of conclusion, 
 that " It is clear from these authorities that the position of the 
 defendant's counsel, that whether the covenants will run as a 
 burden with the land, depends in all cases exclusively upon the 
 relations of the parties and never upon the terms of the covenant, is 
 far from being universally true." Whether universally true or 
 not, one thing is certain. Judge Selden has referred to no case 
 which holds the contrary. Judge Denio has been no more suc- 
 cessful in that line of research. He says, evidently in the way 
 of exciise for this failure, "That so little is found upon the ques- 
 tion in the English reports, is no doubt owing to the consider- 
 ation that STlch reservations are infrequent, and that where they 
 exist the reinedy by distress or re-entry has usually proved ade- 
 quate for the recovery of the rent." 
 
 He is,- in this also, mistaken. The true reason is, that no 
 English lawyer has ever clainied, that a covenant to pay a rent- 
 charge runs with the land. The relations of the parties have, in 
 all cases, been held to control that question, and the terms of the 
 covenant, never. 
 
 The only other authority of any kind, referred to by either of 
 the judges to support their position, is, that of Sir Edward Sug- 
 den in his work on Vendors. Of his views there expressed. Judge 
 Denio says : " He shows, that the commissioners appointed to 
 report upon the state of the law of real property, have treated the 
 question as a doubtful one." His own conclusion is, that such 
 covenants " ought to be held to run in both directions, with the 
 rent or interest carved out or charged upon it, in the hands of 
 the assignee, so as to render him liable to be sued upon them." 
 
 This carries with it, at least an implied confession by Sugden, 
 that the covenant to pay a rent-charge did not run with the 
 land. He concedes he could find no case where it had been so 
 held. He merely gave expression to his own personal notions, 
 that, in that respect, the law should be changed. So that Sug- 
 den, according to Judge Denio's own showing, instead of being 
 authority for him, is authority against him. He had investigated 
 the matter with a strong desire to make out that such covenants 
 did run with the land. He reluctantly confessed the rule to 
 be otherwise. He was, therefore, obliged to content himself 
 with an expression of what he thought should be the rule, as a 
 kind of condemnation of what it really was. 
 
 We have now gone over all the authorities cited in the opinions 
 
 to sustain the point, in regard to the liability of the defendant. 
 
 Not a single case, nor a single elementary authority could be 
 
 found to support such a rule. On the question of authority their 
 
 6 
 
82 
 
 argument dwindles to this : Sugden thought it ought to be so in 
 England, therefore, it should he so in this state. 
 
 In addition to the authorities we have already cited, there are 
 others where the rule is stated in unequivocal language, that a 
 covenant to pay a rent-charge does not run with the land. 
 Among them are : Piatt on Covenants, 65 ; Rawle on Cove- 
 nants for Title, 341, 2d Ed., and Ingersoll v. Sargeant, 1 Whar- 
 ton, 348. 
 
 Judge Denio manifests a want of confidence in his position, 
 as to the liability by the common law, notwithstanding his ex- 
 treme anxiety for those interested in what he calls a " species of 
 property." Ho takes ground, that the act of 1805, to use his 
 own language, "establishes a privity of contract between those 
 holding a derivative title under both grantors and grantees ; and 
 the intention of the Legislature apparently was to place the 
 assignees of both parties upon grants in fee, where rent was 
 reserved, upon the same footing which was occupied by the 
 assignees of the parties to a lease for life or years, under 
 the statute of Henry VIII, and the re-enactment of it in this 
 country." 
 
 Upon this point Judge Selden differs. He says : " With this 
 question, neither the Code or any other statute has anything to 
 do. It depends upon the common law." 
 
 Let us understand Judge Denio's position. It is this : that 
 ten 3'ears after the contract was made, the Legislature trans- 
 ferred the privity of contract to other parties. That is, the 
 Legislature declared that B should be liable to pay the debt of 
 A. That effect is attributed to the statute of 1805. That he 
 calls transferring the privity of contract. 
 
 He thus virtually admits, that some kind of privity was neces- 
 sary to make the defendant liable ; aud that no privity of estate 
 existed. It is a concession that the defendant is not liable, 
 unless the Legislature have made him so since the contract was 
 made. His position contains two monstrous propositions : First, 
 That the Legislature have the power to make one party liable 
 to pay another party's debts. Second, That they have exercised 
 that power in the act of 1805. 
 
 Judge Denio presents his views in another way. His theory 
 is, that the Legislative intention was to place those who did not 
 own lands " upon the same footing " with those who did own. 
 In its practical form it is this : The Van Eensselaers and others 
 own no lands, because their fathers and grandfathers sold in- 
 stead of letting, before the beginning of the present century. 
 Now, says Judge Denio, it was the intention of the Legislature 
 to place these parties, who are thus left without lands, " upon 
 the same footing which was occupied by the assignees of the 
 parties to a lease for life or years." That is, certain individuals 
 were made owners of large territories, while the real owners 
 
83 
 
 were deprived of their property, and merely allowed to continue 
 as tenants to them, subject to oppressive and abject conditions. 
 
 The theory which Judge Denio thus interposes, calls for but 
 two remarks. First: As a perversion of the language of a sta- 
 tute, it has no parallel. Second : As an assumption of despotic 
 poNver, it is not only without parallel but can not be exceeded. 
 Whence have courts or Legislatures derived the power to consign 
 the landowners of one-fourth of the state to feudal vassalage ? 
 
 Judge Denio further argues, tliat such was ' the design of the 
 parties." " They were careful," he says, " to declare that the 
 obligation to pay the rent should attach to those who should 
 succeed tiie grantee as his heirs and assigns, and should run 
 in favor of the heirs and assigns of the grantor ; and the nature 
 of a perpetually recurring payment re^quires that there should 
 be an endless succession of partius to receive and to pay it." 
 
 Here again he furnishes an indisputable concession that there 
 was nothing in the relations of the parties to sustain the judg- 
 ment. The intention of Jacobus Deitz in the last century is 
 made to control the personal rights of the defendant in the pre- 
 sent. Deitz contracted for a daj''s service, and the defendant 
 must perform. He is reminded that he need be thankful that it 
 was not three hundred and sixty-five days instead of one. 
 
 This position of Judge Denio involves a perversion of the facts 
 as well as of the law. It is not true that Deitz covenanted that 
 his covenant should run with the land. He merely covenanted 
 for himself, his heirs and assigns. Assigns of what 1 The pro- 
 vision applies as aptly to any other property which he may have 
 owned and transferred, as to the particular lands in question. 
 
 But as a point of law, will any one pretend that parties own- 
 ing lands can attach covenants thereto by merely covenanting 
 that they shall be so attached 1 Or that a party by agreeing to 
 pay in installments which must reach beyond his own lifetime, 
 can thereby connect them as a burden upon the land 1 
 
 The civil law — the law of Rome — may have known such a 
 rule ; but the common law— the law of England — never. The 
 people of this state, in the adoption of their form of govern- 
 ment, made the common law the basis of their laws. Whence 
 has Judge Denio or his associates, acquired the authority to 
 supersede the common by the civil law ; or to transfer the 
 people from English to Roman jurisprudence 1 
 
 Judge Denio refers to the older cases in our own courts, as 
 authority. The answer to that has been given in the ejectment 
 case. Those decisions were had upon the assumption that the 
 statute quia emptores was not in force here ; and that the deeds 
 were acts of subinfeudation. That point so assumed is now de- 
 cided to be erroneous. It was there assumed that the payments 
 were rent-service. No one denies but that a rent-service runs with 
 the land. It ia now decided that the payments are not rent-ser- 
 vice. This spoils the authority of those cases, as to the running 
 of these covenants with the land. 
 
84 
 
 Judge Denio also refers to Main v. Feathers, 21 Barb., 646 ; 
 and Van Rensselaer v. Bonesteel, 24 Barb., 365. In the first, 
 Judge Gould discussed the question of a rent-charge, evidently 
 under a mistaken view of what a rent-charge was. In the 
 Bonesteel case, Judge Harris led off with the position that 
 there was no difference between lessor and lessee and vendor 
 and vendee, or between rent and purchase money, as to run- 
 ning with the land ; that the doctrine that there must be a 
 reversion to which the rent was incident, which had been so 
 long and so universally held, was a fallacy. That was then 
 thought to be the best way to save "the patroon." Subse- 
 quently, in Van Rensselaer v. Smith, 27 Barb., 104, the same 
 court under the guidance of the same Judge Harris, becoming 
 ashamed, not of sustaining " the patroon," but of the manner in 
 which they had done it, repudiated both Main v. Feathers and 
 Van Rensselaer v. Bonesteel, and held that these paj'ments must 
 be rent-service or they could not run with the land ; that they 
 could not be rent-service without a reversion in the grantor, or 
 some equivalent estate. They say this must be so, "as covenants 
 could only pass as incidents to some estate of the party in whose 
 favor they were made." See 27 Barb., 166. Having come to 
 that conclusion, the next thing was to vest some estate in the 
 grantor. The trouble was, the reversion of the fee was in the 
 state and the fee itself in the defendant; and the reversion and 
 the fee were all the estates known to the law. Here was work 
 for the procreative genius of the court. There must be a new 
 estate created. Hence they declared tliat a new estate was 
 created by the statute of 1805. They named it "an entity;" 
 and pronounced it to be, not the I'eversion, but pro hoc vice equi- 
 valent to a reversion. 
 
 This was a great work, as estimated by those who performed 
 it. It was no less than adding a new estate to a system more 
 than a thousand years old. It is said there was some jealousy 
 among the judges as to the honor of paternity of this new off- 
 spring to real estate. How it stands, has not transpired. The 
 idea was not, however, original with either. It was taken bodilv 
 from the printed argument of the plaintiff 's counsel in the De 
 Peyster case. Judge Harris and his associates added nothing 
 but the name. They were godfathers, not fathers. 
 
 In the De Peyster case, Judge Rnggles condemned the thing 
 as illegitimate. He said of it : " But there is no legal equivalent 
 for a reversion for that purpose. The argument is an attempt 
 to introdsce a new reason never heretofore regarded as sufficient 
 for supporting the condition. The reasoning from analogy is 
 still more frail and feeble." ' 
 
 In taking up an idea so condemned, the judges in the court 
 below evinced both their strong desires to sustain the plaintiffs 
 and the desperate difficulties which they encountered in finding 
 an apology for doing it. The Court of Appeals overruled them 
 
85 
 
 in deciding that the statute quia emptores was in force, the annual 
 payments not a rent-service, and the plaintiffs without estate or 
 interest in the premises. So overruled, the decision of the 
 Supreme Court becomes an express authority, that the judgments 
 can not be sustained. 
 
 In trying to reason upon principle. Judge Denio takes another 
 position which deserves some examination. He says : " It is 
 notorious that the grantee of a term is liable upon covenants 
 which are in their nature capable of running with the land, such 
 as covenants to pay rent, to repair and the like, which his 
 grantor made with the owner of the reversion." 
 
 About that proposition there is no doubt. There are the re- 
 lations of landlord and tenant. There is a privity of estate. 
 That is, there are two estates, the reversion and the tenancy, the 
 latter held of the former ; and the grantees or assignees of either 
 hold to each other the same relations as their grantors had. 
 Every one can understand it. The one party is the owner or 
 landlord, and the other the tenant under him. But this propo- 
 sition does not aid the plaintiff in the case under discussion ; 
 for, as Judge Denio says : " In this case there is, it is true, a 
 reversion, and that may be indispensable, to enable the cove- 
 nantee to assign the obligation made to him ; but it is not easy 
 to see how, upon any kind of reasoning, the presence or absence 
 of a reversion, can effect the relations between the party pri- 
 marily chargeable upon the covenants, and another to whom he 
 conveys the land, charged with the performance of these cove- 
 nants. It is obvious that the fiction of feudal tenure has nothing 
 to do with the case." 
 
 Now, let us see precisely what this position of Judge Denio 
 means. Covenants made in a deed of lease, as for rent, to repair 
 and the like, are conceded to run with the land so as to be bind- 
 ing on the assignee. Covenants made in a deed of assignment, 
 run equally as a burden, because the reversion has nothing to do 
 with that question. We have before shown, that the only dif- 
 ference between a lease and an assignment is, that in the one 
 case there is a reversion left in the grantor, and in the other 
 none. Hence, according to Judge Denio's theory, the presence 
 or absence of a reversion being immaterial, there is no difference 
 between a lease and an assignment. Within that theory, if A 
 lets his possession for ten years to B, and takes covenants for 
 rent, those covenants run with the laud. If B assigns his ten- 
 ancy to C, and takes covenants for annual payments, those cove- 
 nants also run with the land ; and so on for any number of 
 assignments. Bach assignee becomes liable to pay, not merely 
 the rents provided for in the lease, but the purchase money 
 covenants of ail his preceding assignees. Every assignment or 
 alienation might accumulate charges upon the land. 
 
 Judge Selden meets the question of accumulation in this way. 
 He says : "A party who takes a title to lands, with a full know- 
 
86 
 
 ledge that they are already charged with burdens, in the way of 
 covenants beyond their value, is no more entitled to favor than if 
 the lands were encumbered with mortgages to that amount." Ho 
 lost sight of the fact, that the assignee incurs no personal liability 
 to pay the mortgage. Does he mean to say, that without a 
 mortgage he would be personally liable 1 If so, the mortgagee 
 gains nothing by the mortgage, but loses. 
 
 We have already shown that such a theory has no foundation 
 in the books. Every man of common intelligence itnows that 
 when he lets his premises, he needs no mortgage upon them to 
 secure his rent, if he sells, and would acquire a lien for his 
 purchase money, he requires a mortgage. So has always been 
 the practice in this state among all classes of business men. But 
 if the court are right, no mortgage is needed in the one case, 
 more than in the other. 
 
 That covenants should burden land because the party taking 
 title should know of them, would legalize any kind of oppres- 
 sion. All the lands in the country would soon, under such a 
 rule, lie covered up with burdens. Men must submit or starve. 
 This would be a singular policy for a Legislature to inaugurate. 
 Is it any less so for a court ? Have the public no interest in 
 such a question? Is the general prosperity nothing? Why 
 have statutes been passed to prevent leases in fee, or leases for 
 more than 12 years, reserving rent, except to prevent lands from 
 being burdened with covenants and conditions ? The lawmakers 
 could not have supposed that covenants and conditions could be 
 imposed by deeds of assignment and for purchase money, or 
 similar restraints would have been provided for such deeds. 
 
 According to the theory of the court, covenants imposed 
 by deeds of assignment, are worse than covenants imposed by 
 deeds of lease. The tenant can have but one landlord and be 
 liable to only one set of covenants. But covenants imposed on 
 assignment accumulate without limit. 
 
 Lord Brougham in the case of Keppel v. Bailey, treated this 
 question as follows: Speaking of assignments and the covenants 
 therein, he says: 
 
 " The diflerence is obviously very great between such a case 
 and the case of covenants in a lease whereby the demised pre- 
 mises are affected with certain rights in favor of the lessor. 
 The lessor or his assignees continue in the reversion while the 
 term lasts. The estate is not out of them, although the posses- 
 sion is in the lessee or his assigns. It is not at all inconsistent 
 with the nature of property that certain things should be re- 
 served to the reversioners all the while the term continues; it is 
 only something taken out of the demise, some exception to the 
 temporary surrender of the enjoyment. It is only that they 
 retain more or less partially the use of what was wholly used by 
 them before the demise, and what will again be wholly used by 
 them when that demise is at an end." 
 
87 
 
 _ It is unfortunate that Judge Denio and a majority of his asso- 
 ciates could see no diiTerence between a lease and an assignment. 
 And equally so, that they should attempt to change the rules of 
 law because they failed to understand the principles upon which 
 they are founded. 
 
 The reader can now understand, that there is no longer any 
 manorial contest between the parties. It is no longer a question 
 of landlord and tenant. The parties defending are tenants of 
 the state — in common language — landowners. The parties claim- 
 ing have no interest in the lands ; they are merely assignees of 
 choses in action. They could not recover by any established 
 rules of law. And because they could not, the court assume 
 power to change the laws to accommodate their demands. 
 
 The objection is sometimes started, that the courts have so 
 decided and there is therefore no remedy. This objection admits 
 the usurpation. It presents simply this question ; whether the 
 people of this state are to submit to any arbitrary exercise of 
 power in violation of the laws, whenever that power is usurped 
 by the judiciary ; or whether they can resort to the Legislature 
 for relief. We suppose the people have retained ample powers 
 of redress, through the Legislative branch of the government. 
 How it is to be exercised or the particular mode of relief to be 
 sought, are not questions within the range of this review. No 
 one will fail to understand that it is for the Legislature, and not 
 for the courts, to determine under what system of laws the 
 people of this state are to hold their property. Distinctions be- 
 tween leases and assignments, calling for the application of dif- 
 ferent rules of law, have always existed here, and it is for the 
 Legislature and not for the courts to determine whether they are 
 now to be obliterated.