SEYMOUR DURST When you leave, please leave this book Because it has been said " Ever thing comes t' him who waits Except a loaned book." OVl toot 6o*5^/4 Avery Architectural and fine Arts Library Gift of Seymour B. Durst Old York Library Digitized by th6 Internet Archive in 2013 http://archive.org/details/reviewofantirentOObing A EEVIEW VNTI-RENT DECISIONS: 6* V A REVIEW OF ANTI-RENT DECISIONS. 101 PREFACE. At the May General Term of the Supreme Court, for the Third Judicial District, 1857 — Wright, Harris and Gould Justices — several cases, wherein Stephen Yan Rensselaer, Robert Christie and others were plaintiffs, and Peter Ball, Robert Hays and others were defendants, some of which were ejectment and others covenant, were submitted to the court. The ejectment cases were argued, the other cases were not argued ; the court declining to hear argument therein, upon the ground that the decision in the Bonesteel case, (21 Barb., 365,) was regarded a finality ; remarking, how- ever, that they would re-examine that case, and if found untenable, would order re-argument of the covenant ques- tion. The cases, thus submitted, were held by the court until May General Term, 1858, when they were decided adversely to the defendants. Although the positions in the Bonesteel case were aban- doned in making the decisions, yet re-argument was not ordered ; and, contrary to precedent, the decisions were made upon grounds not taken nor discussed by counsel on either side. The opinions were placed by the Judges in the hands of plaintiffs' counsel and soon thereafter published in the Albany Atlas & Argus, as 61 Anti-Rent Decisions." Immediately upon the publication, a review thereof was published in the same paper. No other resource was left to the defence. Silence would have been construed into 4 acquiescence in doctrines, false in theory, and unsupported upon principle, or by authority. Those reviews are now re-published, in connected form, for examination and refer- ence. The following positions will be found settled law : (1.) That there is no rent, and consequently no landlord and no tenant, without a reversion. (2.) That the reversion of lands, held in fee, is in the State, and not elsewhere. (3.) That an individual cannot create a fee ; and no power can create a fee, except the State in its sovereign capacity. (4 ) That an individual may assign or sell a fee ; but can- not lease in fee. (5.) That covenants and conditions can be attached to a fee, only, at the time of its creation. Hence an individual cannot attach covenants and conditions to a fee. A REVIEW OF " ANTI-RENT DECISIONS/' Number I. The decision of the Conrt of Appeals in the De Pejster case — Points of the decision and their application to all deeds in fee made after 1776 — The law of the State settled in that respect — Different from the common un- derstanding — That decision affected all covenants and conditions alike — Attempt of the Supreme Court to overrule that decision — The cases before the latter Court and the manner of submission — The first section of tho Statute of 1787 concerning tenures declared by the Court of Appeals to have been substantially the English Statute quia emptores ; and to have had effect upon all deeds in fee made after 1776 -^Decision by the Supreme Court, that th&t Statute never had any existence here. In 1852, the Court of Appeals decided that all deeds in fee made by individuals after the 4th day of July, 1776, left the grantors strangers to the granted premises without estate or interest therein. Reservations of rent with pro- visions of distress and re-entry were not allowed to have any effect upon the character of the deeds, or upon the quantity and quality of the estates conveyed ; nor was the Manor of Rensselaerwick or any other part of the State, allowed to be an exception to the rule. That decision was applied at the time to three different cases, all within the so-called Manor of Rensselaerwick — See De Peyster vs. Michael, 2 Selden, 467 — They were ac- tions in ejectment, brought by different plaintiffs, claiming to recover as landlords, for the non-performance of coven- ants and conditions nominated in the deeds, whereby the 6 premises had been conveyed in fee about seventy years before. The decision was made to turn, not upon any peculiarity of the covenants and conditions, not upon the point that they were illegal and void when occurring be- tween landlord and tenant, not upon the point that they were contrary to public policy and therefore void, but solely and exclusively upon the ground that the grantor, after executing the deeds had no reversion or estate left in the premises, did not make himself the landlord, and could not therefore impose or fasten thereon conditions or covenants of any kind. For the want of the reversion, the grantor was adjudged to be a stranger to the land, instead of its lord, and the grantee to be the owner instead of the tenant. The result was held to have followed as a consequence to the re-enactment here of the English statute quia emp. tores. By the common ,or feudal law, it was not denied but that conditions in restraint of alienation could be im- posed upon grantees in fee. The grounds of the decision are stated in five distinct resolutions : (l 1. That conditions in restraint of alienation are of feudal origin, and depended on feudal tenure. They were good wherever the grantor had the escheat or reversion. " 2. That they were good before the statute quia emp- tores, 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. {i 5. That the possibility of reverter spoken of by Lord Coke, is the right to the escheat and nothing more nor less." 7 That decision settled the law of the State differently from what it had been supposed to be before that time. It had been assumed — never decided — that the statute quia emptores, was not re-enacted here, and that conse- quently the common law rule of tenures was in force. Upon that assumption rents had been enforced upon grants in fee in the same manner, upon the same theory and by the same rules, as upon leases for lives and for years. — They had never been enforced or demanded upon any other assumption. The common law relations of landlord and tenant were held to exist and the rent was therefore the rent service of the common law — See Yan Rensselaer vs. Bradley, 3 Denio, 135 — No case can be found, in this State at least, recognising any other relations of lord and tenant, than those of the common law. That is, two estates have always been required to constitute that rela- tion ; the reversion in the one party and the tenancy held thereof in the other. Instead of the creation of such rela- tions by statute differently from the common law, it has been repeatedly and uniformly held, that our statutes whenever they use the word rent and the terms landlord and tenant, use them according to the common law meaning and not otherwise. The authorities to this point will be noticed in the course of this review. When, there- fore, the court determined that the defendants were right in the position that the common law relations of landlord and tenant did not exist between these parties, they de- termined the actions in favor of the defence, unless they can show that the statutes have authorized the constitu- tion of such relations upon a different footing from the common law. This they have attempted to do. Judge Gould alludes to it in the opening of his opinion as a discovery made in the law of this State. It is true no de- cision of the kind can be found of an older date. And if the court be correct in the doctrine that our statutes have placed those who own lands and those whe do not, on the 8 same footing in regard to rents, it may prove to be an in- novation of importance. Heretofore, it has been only upon the assumption of the common law relations of lord and tenant, that rents have been enforced. At common law, the grantor in fee, was just as much the lord of the soil as the lessor for years, and the rules of landlord and tenant applied as rigidly in the one case as in the other. The statute quia emptores changed the common law as to grants in fee, so that the grantor, instead of having the reversion left, parted with his entire estate. That statute was pronounced to have been in force in this State from 1776, and to have pro- duced the same effects upon the laws thereof as had been produced upon the English laws by the English act. — Hence it was obvious that an action could not be sustained against the grantee of the covenantor, for rent any more than for sale money. The one covenant had no greater capacity for running with the land than the other. The parties were not in the relation of lord and tenant, and {he covenant was not for rent, but for purchase mone} r , what ever it might be denominated in the deed. After the decision of the De Peyster case, actions were brought to enforce the collection of rents, as they are called, and defences were interposed based upon that deci- sion. The question was submitted to the general term of the Supreme Court of the Third District in December, 1855, upon the argument of Counsel. Judges Harris and Wright were the only members of the court present. The decision, was announced in October 1856, and is reported, Van Rensselaer v. Bonesteel, 24 Barb p. 365. In the time intermediate its submission and decision, another case presenting the same questions was argued before Judge Gould at Special Term, and decided by him. — See Maine v. Feathers, 21 Barb. 646. — Referring to that case, in his opinion under review, he truly remarks, that but little ar- gument was ma^ie. But little as there was, it was the only 9 argument ever made upon the covenant question, when Judge Gould was present. He was not a member of the court when the Bonesteel case was argued. The cases thus far were all upon the covenants. They are referred to now, merely to remark a peculiarity which has characte- rized the judicial practice in the disposition of this class of actions. In each case the decision has been put upon points not discussed, nor suggested by counsel, and no two cases are placed upon the same grounds. At the May General Term, 1857, the ejectment question was argued before Wright, Harris and Gould, Justices. The latter was present only during the opening argument. Papers were handed up in the covenant cases, Harris and Wright, Justices, only being present. They declined to hear argument, assigning as the reason, that the court had passed upon the question in Van Rensselaer vs. Bonesteel, and regarded the opinion in that case conclusive. They however took the papers, with a view, as stated at the time, of allowing a re-argument, should they on further examination entertain doubts of the soundness of the Bonesteel opinion. These cases are the ones decided in May 1858. The two opinions, are very similar in their positions and reasoning. The points made by counsel for Plaintiffs are not even noticed. The decisions are placed upon grounds directly in conflict with the positions occupied by the same Judges in Maine vs. Feathers and Yan Rensselear vs. Bonesteel. In the Bonesteel case, Judge Harris admitted the cor- rectness of the point, that the plaintiff had no estate in the premises, and that, therefore the parties were not land- lords and tenants. His language is, si The fallacy of the argument in support of the demurrer, lies in the position assumed by the defendant's counsel, that there must be not only privity of estate between the covenanting parties, but also between the plaintiff and the defendant. It was 2 10 insisted that in order to sustain the action against an as- signee, the plaintiff must still have some reversionary in- terest in the land, as in the case of landlord and tenant — But this is not requisite ; it is enough that at the time of making the covenant an estate passed between the coven- anting parties." In the opinions under review, Judge Harris now admits, that, " A covenant to enure to the benefit of a stranger to the estate would not run with the land as to its charge or burden. So, also, it seems theoretically plausible that if a grantor conveys his whole estate, reserving nothing of the estate or the lands in himself, he cannot charge or burden the land in the hands of an assignee, even by a covenant in the deed of conveyance, for having parted with his entire interest, reserving nothing, he is as much a stranger to the land as though he had never owned it, and has no estate to which the covenant can attach." Again in the same opinion he agrees that. (t A still further concession may be made that unlebS the British Statute of quia emptores was in force in the colony before the Revolution ; or since the Revolution a change has been wrought in the common law precisely equivalent to the British Statute, there is no defence. Unless one or other of these things appear, the common law relation of landlord and tenant subsisted between the original grantor and grantees ; and the rent covenant in the orig- inal indentures passed as to its burden to the assignee of the lands." The converse of this is admitted in both opinions, that if the Statute of quia emptores was in force here before the Revolution, or if a change has been wrought upon the common law since the Revolution, equivalent to that pro- duced by the English Statute, there is a good defence and the assignee or grantee of the lands is not liable upon such covenant. 11 This is the true point of the cases under review as they were presented to the court. And here the reader should understand that it is not the mere point of counsel for de- fence, it is not a point originated or first announced by Bingham and Colvin, as the claimants have labored so much to have the public believe ; but it is the point decided by the Court of Appeals in De Peyster vs. Michael, hereto- fore referred to. That Court there decided that Statutes precisely equivalent to the English Statute quia emptores had been enacted here and had continued to be and were still in force, and had produced, and were still producing the same effect upon our laws as the English act did upon the English laws. In the opinion of Judges Harris and Wright the language of Judge Ruggles in the De Peyster case is quoted as follows. Referring to our statutes, he said : "These statutes performed the same functions and wrought the same changes in the feudal tenures of this State as the statute of quia emptores did in England. They put an end to all feudal tenure, between one citizen and another, and substitued in its place a tenure between each landholder and the people in their sovereign capacity." — They might have quoted further to the same effect, for in the same connection, — Judge Ruggles said of our statutes, " and they placed the law of this State, in respect to the question in controversy upon the same footing on which the law of England now stands, and has stood since the reign of Edward the First." There is another feature of the opinions, which deserves a passing notice in this connection. They base the decision upon the point that the reservation of rent changed the character of the deed in question and the estates of the respective parties ; and they put forth the idea, that this is a point overlooked by the Court of Appeals and dis- covered by them. The reader should be disabused of this impression before following their argument further. Such 12 a point was distinctly made in the De Peyster case and distinctly passed upon. In the opinion of Judge Ruggles, already quoted from, he says : " A rent is not a reversion " — 2 Selden. p. 506 — Again, " The rent and the right to re- enter for non-payment, are not reversionary, whatever they may be called in the lease ; and it is not enough to say, they resemble or are analogous to such interest." And again, upon the same page, he says : "The argu- ments above referred to, in favor of the condition to pay sale money, are founded on the proposition that the reser- vation of rent and the right of re-entry are interests in the land remaining in the lessor, analogous to a rever- sion and equivalent for that purpose. The argument is an attempt to introduce a new reason ; never heretofore re- garded as sufficient, for supporting the condition. The reasoning from analogy is still more frail and feeble." This applies with equal force and propriety to the rea- soning of the opinions under review. The idea that a party may have an estate in lands for one purpose, but for another none at all, would be too absurd to demand an answer. The point once decided, as it has been by the Court of last resort, that the statute quia emptores was in force, and that no tenure can exist between individuals upon grants in fee, it is a rule which has had no exceptions, that estates in fee, cannot be burdened with covenants and conditions of any kind or character. No such thing was ever at- tempted until the cases of Maine v. Feathers, and Yan Rensselear v. Bonesteel, herein before cited. Those posi- tions are now abandoned. The decisions are not however changed. The former ground is relinquished only to sub- stitute another. Before, the effort was to avoid the effects of the De Peyster case. Now, the doctrine of that case is directly attacked. In the majority opinion, it is done in the following unequivocal language ; " The statute of quia emptores destroyed tenure as between feoffor in fee, and feoffee, changing rents service into rents charge, and as is 13 claimed, constituting the grantor in fee in effect a vendor, instead of the landlord, and the grantee, the vendee, in- stead of a tenant. That statute never had any existence here." This reduces the contest to a single point ; whether the Court of Appeals shall overrule the decision in the De Peyster case to sustain the judgments in the cases under review, or whether it shall adhere to that decision and re- verse those judgments. # Number II. The first section of the Statute of 1787 concerning tenures, conceded to be substantially the Statute quia emptores — It is conceded that the actions could not be maintained in England because of that Statute — Question, whether Statutes substantially alike produce here the same effects as in England — Decisions of the Supreme Court and Court of Appeals, holding the effects to be the same — Decisions under review holding the contrary — The Statutes quoted — Mistaken assumption of fact and its conse- quences — The 5th section of the Statute of tenures — Its' effect as de- clared by the Court of Appeals — Its effect, claimed by the Supreme Court — The purpose of that Statute and the reason of its adoption — Views of the Revisers thereupon and the reason why the section was omitted in the Revised Statutes. Notwithstanding the Judges — Harris, Wright and Gould — take ground that the statute quia emptores was never in force in this State, and make that position the turning point of the decisions, it is conceded by them that the first section of our act concerning tenures of 1787, was sub- stantially a transcript of that statute. It is further con- ceded that if the first section had been left unaltered by a subsequent section, it would have performed upon our laws the same effect which the original act had produced upon the laws of England, and the actions could not be maintained. The language of the majority of the court to that effect has already been quoted. Judge Gould makes a similar concession. He says : " When the statute quia emptores was passed in England, the policy of that law was held to be, to discourage all relations between the grantor of land and the grantee, which could in any way impair or restrain the estate granted to the latter ; and consequently that policy called the convenants of the grantor -personal, and not binding the lands in the hands of the assignee." 15 The question is, therefore, not whether the statute of quia emptores was enacted here, but whether it produced the same results here as in England. In Overbagh vs. Patrie, 8 Barb 28, the Supreme Court decided that it did. Mr. Justice Parker, in delivering the opinion, reviewed the previous cases and, upon full discussion, declared that statute to have been enacted here in 1787, and to have had the full effect of the English act. His associates concurred with him. Judge Wright was one of his associates. That decision was subsequently affirmed by the Court of Ap- peals, at the same time of the De Peyster case. — (See 2 Sel. 510.) In the cases under review, the three Judges dissent upon that point from the decisions of the Supreme Court and the Court of Appeals. They place their dissent upon the assumption that our act concerning tenures of 1787 con- tained a provision or provisions, in the 5th section thereof, not found in the English statutes. In taking that position they of course assume the responsibility of proving it to be true in fact. To make good the ground they take, they must show statutes different from the English statutes. It is an important assumption, for it is made the foundation of their decisions, if they have any foundation If false in fact, if our statutes are substantially like those of England, then confessedly there is no foundation upon which to rest the decisions made. Upon this point there is no room for dispute. The 5th section of our act, which is relied upon, is substantially a transcript of an English statute in force in England for al- most two hundred years. That the reader may judge for himself, a copy of each statute is given. The 5th section of the act of 1787, relied upon, is as follows : u Provided, nevertheless, that this act or anything here- in contained, shall not take away nor be construed to take away or discharge any rents certain or other services in- 16 cident or belonging to tenure in common socage, due or to grow due to the people of the State, or any mean lord, or other private person, or the fealty or distress incident thereunto." This was substantially a transcript of the 5th section of the English statute, 12 Chas. 2 c. 24. The latter was as follows : " Provided, nevertheless, &c, That this act or anything herein contained, shall not take away, nor be considered to take away, any rents certain, heriots or suits of court belonging or incident to any former tenure now taken away or allowed by virtue of this act, or other services in- cident or belonging to tenure in common socage, due or to grow due to the king's majesty or mense lords, or other private person, or the fealty and distresses thereunto ; and that such relief shall be paid in respect of such rents as is paid in case of a death of a tenant in common socage." It is thus evident that the Judges should have ordered re-argument upon rinding a point not taken by counsel, which struck them as material and controlling. Usual practice, as well as prudence, might have been safely con- sulted in that way. Had the point been suggested and submitted to the argument of counsel, the court would probably not have fallen into so gross a mistake as the assuming the 5th sec- tion of the act of 1787 to be an original section. They might not then have found in that section, as they now profess to have done, the foundation whereupon to re- construct the feudal system without feudal tenures. They made as great a mistake in assuming that therein was a fact overlooked by the Court of Appeals in the Do Peyster case. That section was presented to the attention of that court, and every effect upon the grants in question claimed for it, which could be claimed ; and the court denied that it could save the lands, or any thing of a real estate character therein. The opinion of the court was expressed by Ruggles, then the presiding Judge. 17 In regard to the 5th section he said (page 503) : — "The 5th section saves to the mesne lords the fealty and feudal services due to them on conveyances made before the 4th of July, 1776." Again upon the same point, page 504 : "The 5th section declares that the act shall not be con- strued to take away the rents and service due to tenure in free and common socage from the person previously en- titled to them, or the fealty or distress incident to that tenure." Again upon the same page : "As to lands granted in fee by the proprietors of the patent before the Revolution, the escheat became after- wards vested in the people of the State by the operation of the statute of tenures as soon as they changed hands by conveyances in fee, if not immediately upon the passing of the act." Thus it appears that the Court of Appeals, all the judges concurring, denied to the 5th section any effect, except upon grants in fee made before the revolution. What might have been the effect upon deeds of a date before that time, was not determined, nor was it necessary to de- termine. The effect upon anterior deeds was also immate- rial in the cases under review. Aside from the decision of the De Peyster case, it is difficult to perceive how the learned judges so misconceiv- ed the origin as well as the meaning, and intention of the 5th section of the act of 1787, concerning tenures. There was no precedent to lead them to such misapprehensions. The same section was made a part of the laws of England in 1660, now almost two centuries ago. It has been in force there ever since. No one denies but that it was adopted here for the same purpose for which it had been enacted there. It was a saving clause there and a saving clause here, but in neither country intended to save anything or anybody from the operation of the statute quia emptores.— 3 18 In the period of two hundred years, no claim or suggestion of the kind has been made, until the decisions under re- view. The 5th section was one of the sections of the act abol- ishing the incidents of tenure by military or knight ser- vice. The incidents of such tenures were abolished indis- criminately. The certain and the uncertain, the contin- gent and the absolute, were served alike. It was not the intention to abolish feudal tenures where they existed, but only to cut off the incidents imposed, which were pe- culiar to military or knight service, and leave them only with such incidents and impositions as properly belonged to socage tenures. In other words, it was not the design of the act of 12 Charles, 2, of which the 5th section was a saving clause, to take from parties owning lands then leased, with military incidents imposed, the lands themselves, or any estate therein, but merely to abolish the incidents of knight service and leave those of socage tenures. Rents certain and services certain were of the latter character and were therefore saved. The end of the whole statute was merely to cut military tenures down to socage tenures. The abolishing sections were sweeping and in- discriminate, and it was therefore necessary to have a sav- ing clause in order to save rents certain and services cer- tain. Hence the 5th section of the English act. It was inserted for the benefit of the military lords and persons who owned lands leased upon military tenures, in order to save to them such of the incidents of their leases as were not inconsistent with socage tenure. The saving section was no more comprehensive than the abolishing or extir- pating sections. Only those who had suffered by the one could claim the benefit of the other. It was never claimed, except by the learned judges in the cases under review, that the saving section was intended to vest land in those who had none, or to save and continue estates or interests in parties after they had conveyed all they had to convey. 19 The English statute quia emptor es took away nothing ex- isting at the time of its enactment. It did not affect the the past, but only the future. It was no part of the pur- pose of the statute, 12 Cha. 2 c. 24, to modify or interfere with its workings, either past or future. If any evidence was necessary upon this point, the history of English jurisprudence would be enough. It is equally clear that it was no part of the purpose of the 5th section of our act to modify or interfere with the effect of the first section. The first is conceded to have been substantially the English Statute quia emptores. It took from no one, but only prescribed the rule of the future. There was nothing to save from it, for there was nothing destroyed by it. The second and third sections abolished military tenures and all their incidents. They were sub- stantially transcripts of the English statute, 12 Chas., 2. Those were the sections designed to work destruction, if there was anything existing, which could thereby be de" strayed. The 5th section was inserted as conservative of some incidents which were otherwise to be destroyed by the second a/id third sections. Strike out those two sec- tions, and the 5th would have been left inoperative, for it had no reference to or connection with any other. The only practical effect which it could have been made to pro- duce, was in case some lord or other person having lands, held of him by military tenure, created anterior to August 30, 1664, had found himself deprived of the incidents of that tenure by the second and third sections, and among the incidents had been rents certain and other services incident to socage tenure. To have saved the latter incidents, he could have relied upon the 5th section. Unless there may have been such a case that section was without effect. From nothing else, and from no one else, did the second and third sections take anything away ; and in no other event could the 5th section have been made to save any- thing from being taken away or discharged. 20 Whether military tenures ever existed under the State or the Colonial government, is of no moment to the disposition of these cases. It is certain that no military tenures ever existed between these parties, or in connection with the deeds in question. If none ever existed in the State, or in the Colony before it became a State, our Statute of Tenures of 1787, except the first section, was uncalled for, and has always been inoperative for want of something to operate upon. Such was the view taken by the Revisers, and so declared by them. See Revisers Notes, 3 R. S., 2nd ed., p. 564. They quoted all the sections of the act concerning tenures of 1787, except the first section. This included the 5th section as a matter of course. They then remark in regard to them as follows : " The Legislature of 1787, were engaged in the delicate and difficult task of selecting such English Statutes as were proper to be re-enacted in this State, preparatory to the general repeal of the remainder. It is probable that the provisions above quoted, so far as they relate to the ancient military tenures, were re-enacted merely from abundant caution ; for it is difficult to perceive any necessity for the formal abolition of tenures and incidents of tenures, which never existed in this Colony." After referring to certain historical and legal records, they further say : "The foregoing observations and references render it quite certain that the military tenures and their incidents were never in existence in this Colony ; and that their abolition in 1787, was quite unnecessary." Upon the same page they further say : "It is therefore proposed to omit the sections above quoted from the act of 1787, both as unnecessary in their original form, and as calculated to produce erroneous im- pressions in regard to important historical facts." 21 In accordance with their recommendation, those sections were omitted. Neither before nor since, until the decisions now under review, has it been claimed or held that the rights of property in lands in this State, depended or could be made to depend upon the existence or non-existence of those sections, or any one of them. By these decisions they are made the foundation for the subversion of common law rules which are as old as the common law itself. Upon that foundation it is claimed that the legislature at different periods, particularly in 1788, 1805 and 1830, have been im- proving, until at the latter period they consummated the greatest legal revolution which has ever been produced in any age of the world. First. They have abolished feudal tenures ; Second. They have established the feudal system without feudal tenures ; Third. They have succeeded in putting the party who does not own lands upon the same footing with the party who does, in regard to the rents and profits, or even to the possession of the premises. This last is the accomplishment of a result heretofore regarded as Utopian, and sometimes denounced as agrarian. It is now to be put in practice. Lands are to be taken from parties who confessedly own the fee, of which the State has the reversion, and given up to parties who as confessedly have no estate therein This radical change in the rules of real property is worked out, not from any express provisions of the statutes, but by the reasoning of the judges. An epitome of the reasoning may be given thus : The first section of the act of 1787 is in substance the Statute Quia Emptores. It placed the reversion, of every fee, in the State, and thus made tenure upon such grants between individuals impossi- ble. The 5th section saved rents certain and services certain incident or belonging to socage tenure, due or to grow due to the people of the State, or any mesne lord or other pri- vate person, or the lealty or distresses incident thereunto. 22 From these premises, they draw this conclusion, that rents and services may be reserved upon grants in fee where the} T admit there is no tenure. It will be seen that the conclusion is utterly unauthorized by the premises It can be accounted for only in this way. Their ideas of tenure did not get beyond feudal tenure. It did not occur to them that there were other tenures to which rents could be incident and which could be declared and made socage tenures. Rents and services were named, and, they perceiving no tenure in existence, concluded that the legislature meant to change the common law rule and have rents reserved to parties who had no estate or reversion in the lands. In the same way they were led to apply the term socage tenure, where no tenure of any kind existed. They overlooked the fact that tenure exists between every owner in fee and the State, and between lessors and lessees for lives and for years, and that such and such only were the tenures declared to be socage tenures to which rents as incidents could be annexed, with the common law fealty and distress. The same limited understanding led to their miscon- struction of the Revised Statutes. The 3d section 1, R. S. 718, declared all lands allodial and to be the absolute pro- perty of the owner only subject to escheat to the State ; and further that all feudal tenures and all their incidents were abolished. Had the statute stopped there, no party could have leased his lands even for a term of years and have reserved rents, for they are feudal incidents and were abolished. They were no less such incidents when annexed to leases for life and for years, than when annexed to deeds in fee at com- mon law. Socage tenure and tenure by knight service applied alike to all leases. So the Revisers understood it. They referred to Cornell v. Lamb, 2 Cow. 652. 2o That was a case arising upon a lease by parol for a term of years. Chief Justice Savage held that where the land is not allodial and where the landlord is entitled to the reversion and to a rent, he is authorized to distrain for rent. The Revisers say that this clearly implied that where lands are allodial, the reversioner for a term of years even, could not have a rent \ and they thought the remark was made with great reason. Accordingly they recommended the 4th section to save rents upon leases for lives and years — This full}' explains the section without coming to the in- fatuated conclusion, that the revisers and the legislature meant to change the common law relation of lord and tenant and institute relations without tenure or connection, and thereby fasten the feudal system upon the State with- out feudal tenures ; and place those who own lands and those who do not,