Page:United States Reports, Volume 1.djvu/318

Rh 

1788.

fubject to executions for debt, and in the cafe of a Devaʃtavit committed by an Adminiftrator. He infifted that the policy of the laws of this State was to facilitate the transfer of lands, in contradiction to the genius of the common law ; that, therefore, it might be incumbent upon the Engliʃh Courts to enforce with the greateft ftrictnefs the exprefs covenants in a conveyance; but that our Courts ought rather to conftrue them liberally, fo as to prevent unneceffary embarrafsments in the change of property. If, then, the Defendant is liable for the laft year's rent, he muft be liable, by the fame rule, for the rent of 40 years ftanding ;and thus, as the Grantor of a rent-charge can never be exonerated, or even fate in the difpofal of the eftate from which it iffues, the reftraints on fales and transferrs will become daily more numerous, and more injurious to the public welfare.

Millegan, for the Plaintiff, obferved, that as the firʃt point was a matter of mere conftruction, he fhould leave it implicitly to the Court.

With refpect to the ʃecond point, he contended, that the difficulty had arifen from not diftinguifhing properly between actions of debt and actions of covenant : For, he granted, that an action of debt would not lie in this cafe ; as it requires privity of eftate to fupport it ; but that the action of covenant required only privity of contract, and, therefore, would well lie againft the Grantor of the rent-charge, after his affignment. In fupport of this diftinction he cited 1 ''Roll. Abr.'' 522. ''Cro. C.'' 580. 1 Sound. 240. 2 Keb. 640. 1 ''Bac. Abr.'' 536. ''tit. Covenant. Cro. J.'' 309. Sid. 402.

SHIPPEN, Preʃident.–The queftion in this cafe is, whether on a Ground Rent Deed, wherein there is an exprefs covenant on the part of the Leffee for payment of the rent, and he affigns over the premiffes, and the Leffor accpets rent from the Affignee, an action of covenant will lie for the Leffor againft the Lefffee for the fubfequent rent.

The diftinction between actions of debt and actions of Covenant in this cafe, is too well eftablifhed to be now unfettled. The action of debt lies upon the privity of Eʃtate, which is utterly extinguifhed between the Leffor and Leffee by the Leffor's acceptance of rent from the Affignee. The action of covenant, when founded upon an expreʃs  covenant, lies not upon the privity of the Eʃtate, but privity of contract, which cannot be the affignement of the premifes, or by any act of the Leffee, or by acceptance of the rent, be transferred from him. The covenant, however, muft be an exprefs covenant, not as implied one, or a covenant arifing by operation of law, as by the words “yielding and paying” &c. in the deed.

The cafes in the books upon this point are generally of actions of covenant for not making repairs ; and a diftinction has been attempted to be made between thofe and actions for the Rent: in the latter cafe it is faid, that the land being thefund out of which the rent is to iffue, and that being tranferred, the Leffor's acceptance of Rh