Covenant. The argument arose upon the following case, stated for
the opinion of the Court: 'John Kunckle on the 7th day of Oct.
1784, conveyed to Nicholas Wynick, in fee simple, a lot of
ground
Page 1 U.S.
305, 306
in the Northern Liberties of the city of Philadelphia, reserving
a Rent- charge of 40 dollars per Ann. payable on the 1st day of
October annually. Before any rent was due, Nicholas Wynick, on the
15th of July, 1785, assigned and conveyed all his interest in the
Premisses to Henry Meyers. The Plaintiff accepted one years rent of
the Assignee. The question is, whether he can recover in the
present action, which is for one year's rent accruing subsequent to
that paid?' The conveyance from Kunckle to Wynick contained the
following clause: 'And the said Nicholas Wynick for himself, his
heirs, executors and administrators, doth hereby covenant, promise,
and agree, to and with the said John Kunckle, his heirs, and
assigns, that he the said Nicholas Wynick, his heirs, or assigns,
shall and will at his and their own expense, within one year from
the date thereof, erect, build, and finish, on the hereby granted
lot, one good substantial dwelling house, at least 16 feet square
and two stories high, with a cellar under the same walled up with
brick or stone and shall and will from time to time and at all
times hereafter for ever, well and truly pay, or cause to be paid,
unto the said John Kunckle, his heirs, or assigns, the aforesaid
yearly rent or sum of 40 dollars, &c.' Rawle, for the
Defendant, made two points: 1st, Whether the sentences in the
clause above stated from the deed, could be so coupled and
interwoven, as to create an express covenant, on the part of the
Grantor, that his assigns should pay the rent-charge? and, 2ndly,
Whether acceptance of rent from the Assignee, was not a bar of the
Plaintiff's demand of the rent from the Assignor? 1. On the first
point he endeavoured to construe the Covenant, so as to extend it
to the Assigns of Wynick, only in the case of building the
dwelling-house, and not in the case of paying the rent. But he did
not seem to expect much success from this discrimination. 2. On the
second point, he argued, that this was a rent issuing out of the
land, which the Plaintiff had elected to pursue by his acceptance
of rent from the Assignee; and that this acceptance was a bar to
his demand against the Defendant. Cro. J. 522. 3 Rep. 22. 2 Bulstr.
152. He admitted, that 3 Lev. 233. Saund. 240. S. C. appeared to be
strong against him; but, contended, that, in truth, they ought not
to have any weight with the Court, since the present question was
not immediately in agitation in those cases, and, consequently,
what has not been expressly adjudged, cannot be set up as an
authority. As 1 Bac. Abr. 536. is founded on 3 Lev. 233. it must
necessarily follow the fate of its principal. With respect to Keb.
640, he presumed that the Reporter had been guilty of some mistake,
and questioned whether his doctrine had been received even in
England. But he urged that whatever might be the practice there,
the laws and circumstances of Pennsylvania had rendered a different
one necessary here; for the acts of Assembly altering the common
law, carried with them many consequences, which were not expressly
provided for in the acts themselves; as in the case of real estates
made
Page 1 U.S.
305, 307
subject to executions for debt, and in the case of a Devastavit
committed by an Administrator. He insisted 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 English Courts to enforce with the
greatest strictness the express covenants in a conveyance; but that
our Courts ought rather to construe them liberally, so as to
prevent unnecessary embarrassments in the change of property. If,
then, the Defendant is liable for the last year's rent, he must be
liable, by the same rule, for the rent of 40 years standing; and
thus, as the Grantor of a rent-charge can never be exonerated, or
even safe in the disposal of the estate from which it issues, the
restraints on sales and transfers will become daily more numerous,
and more injurious to the public welfare. Millegan, for the
Plaintiff, observed, that as the first point was matter of mere
construction, he should leave it implicitly to the Court. With
respect to the second point, he contended, that the difficulty had
arisen from not distinguishing properly between actions of debt and
actions of covenant: For, he granted, that an action of debt would
not lie in this case; as it requires privity of estate to support
it; but that the action of covenant required only privity of
contract, and, therefore, would well lie against the Grantor of the
rent-charge, after his assignment. In support of this distinction
he cited 1 Roll. Abr. 522. Cro. C. 580. 1 Saund. 240. 2 Keb. 640. 1
Bac. Abr. 536. tit. Covenant. Cro. J. 309. Sid. 402.
Shippen, President. The question in this case is, whether on a
Ground Rent Deed, wherein there is an express covenant on the part
of the Lessee for payment of the rent and he assigns over the
premisses, and the Lessor accepts rent from the Assignee, an action
of covenant will lie for the Lessor against the Lessee for the
subsequent rent. The distinction between actions of debt and
actions of Covenant in this case, is too well established to be now
unsettled. The action of debt lies upon the privity of Estate which
is utterly extinguished between the Lessor and Lessee by the
Lessor's acceptance of rent from the Assignee. The action of
covenant, when founded upon an express covenant, lies not upon the
privity of Estate, but privity of contract, which cannot by the
assignment of the premises, or by any act of the Lessee, or by
acceptance of the rent, be transferred from him. The covenant,
however, must be an express covenant, not an implied one, or a
covenant arising by operation of law, as by the words 'yielding and
paying' &c. in the deed. The cases in the books upon this point
are generally of actions of covenant for not making repairs; and a
distinction has been attempted to be made between those and actions
for the Rent: in the latter case it is said, that the land being
the fund out of which the rent is to issue, and that being
transferred, the Lessor's acceptance of
Page 1 U.S.
305, 308
rent from the assignee will take away all remedy against the
Lessee himself. I have looked for this distinction in the books,
but cannot find it in any case where there was an express covenant
for the payment of the rent. The cases found the law upon the
personality of the contract; which extends equally to the payment
of the rent, as to the making repairs; and, though the authorities
are not so numerous in the one case as the other, yet they are as
express. 2 Keb. 640. and 2 Barnard. 372 are full to the point. If
these books are thought to be of doubtful authority, 1 Roll. Ab.
522. cites two cases, where the breach of covenant was for non
payment of the rent. In 1 Sid 402. where the Court draws the
distinction between debt and covenant, they expressly mention the
action to be for the rent; and the case in 3 Lev. 283. is likewise
covenant for non payment of the rent.
As to the argument ab inconvenienti, I cannot see how it
operates more in this country than in England. If Lessees mean not
to be personally bound after assignment, they should take care what
covenants they enter into. If they will, in express words, covenant
for the payment of the rent, they must be bound by it.
Judgment for the Plaintiff.
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