Page:Harvard Law Review Volume 10.djvu/107

81 A BRIEF SURVEY OF EQUITY JURISDICTION. 8 1 grant of an annuity, on the principle that omne majtis in se minus continet. For the same reason, if a grant of a rent failed as such, e.g.y because the grantor had no title to the land out of which the rent was to issue, yet the grant might be good as a grant of an annuity. The same grant could not, however, operate both as a grant of a rent and as a grant of an annuity; and while, therefore, the grantee of a rent always had the option of treating the grant as the grant of an annuity, yet, if he once elected so to treat it, he could not afterwards treat it as a rent. Moreover, as an annuity was a personal obligation, while a rent was a real obligation, a con- sequence of an election by the grantee of a rent to treat the grant as a grant of an annuity was that the land was discharged, and the grantee had to look to the personal liability of the grantor alone. From what has been said, the reason is obvious why a writ of annuity would never lie upon a rent reserved; for, as a reservation of a rent is the act of the grantor of the land alone, it would be absurd to say that it can operate as a grant of an annuity by the grantee of the land ; and yet it must so operate if a writ of annuity is to lie for recovering it. It would be equally absurd to say that the grantor of the land can by his own act impose a personal obligation upon the grantee of the land. A writ of annuity, however, like a writ of assize, has ceased to be an available remedy. 3. If the grantee of land, upon the grant to whom a rent is re- served, or the grantor of a rent, covenant to pay the rent, of course the covenantee can sue upon the covenant, if the rent is not paid. The value of such a covenant, however, in case of a rent granted, or in case of a rent reserved upon a grant of land in fee, depends much upon the question whether the covenant runs with the land, — a question which will be considered hereafter.^ 4. An action of debt would always lie for the recovery of rent, either against the grantee of land, on the grant to whom the rent was reserved, or against the grantor of a rent, or against the assignee of either, so long as he held the land as such assignee. In the case, however, of a freehold rent, this action was of little value, as it would not lie until the last payment of the rent became due. 5. The remedy by way of distress was available in all cases of 1 See Van Rensselaer v. Hays, 19 N. Y. 68.