The opinion of the Court was delivered by
Kennedy, J.
—Although the counsel for the plaintiff in error have assigned, numerically, no less than twenty-seven errors, yet they have, in their argument, reduced the number to five, which they rely on as being sufficient to obtain a reversal of the judgment.
1. That the court, on the trial of the cause, erred in permitting the defendant to exhibit a title different from that mentioned in his cognizance as bailiff of John B. Newman.
%. In not instructing the jury that the judgment in the action of partition in 1830 invested the parties thereto with the legal title to their respective interests in severalty.
3. In charging the jury that if they believed the testimony of general Cadwalader, it showed that the defendant had sufficient authority as the bailiff of John B. Newman to make the distress.
4. In instructing the jury that the written letter of attorney executed by John B. Newman and others to the defendant, gave him sufficient authority to make the distress. •
5. In deciding that the plaintiff could not claim to have deducted from the amount of the rents, the taxes or any portion thereof paid by him, which had been assessed upon the lot of ground out of which the'rent issued.
In regard to the questions involved in the first three of these errors, I do not know that any thing can be added to the very able and lucid argument of the learned judge of the district court, which would tend to show more clearly than he has done that they were decided correctly. As to the first, there is really no foundation for it; because the title shown on the part of John B. Newman, for whom the defendant acted as bailiff in distraining for the rent in question, was perfectly consistent with all that was alleged in the cognizance. In that the defendant states the rent to have become due from the plaintiff by the enjoyment of the lot of ground therein described under a grant thereof from James Hamilton to Thomas Cookson, re[116]*116sewing the rent therein mentioned; of the latter of whom the plaintiff became assignee: and that John B. Newman became the assignee of James Hamilton, without specifying the several links in the chain of conveyance from Hamilton down to Newman, or showing distinctly by what means the latter became the assignee of the former. This was certainly not necessary, because the tenth section of the act of assembly of the 21st of March 1772, in order to get rid of the difficulties that arose in making avowries or cognizance upon distresses for rent, has made it sufficient for defendants in replevin to avow or make cognizance generally, without setting forth the title of the landlord or lessor. It is alleged, however, that the rent in question is a rent charge, and that this section of the act does not embrace it. It may be questioned whether it can be properly and strictly called a rent charge in Pennsylvania. It is known here specifically by the name of “ ground rent,” and is mentioned and designated by this name in our legislative acts. By the act of the 11th of April 1799, passed for raising and collecting county rates and levies, ground rents are.specifically mentioned. The legislature, in designating and pointing out the various objects thereby required to be taxed, have not mentioned rent charge nor used the term at all: neither have they used any other that would seem to embrace it singly or in any other way whatever. For it cannot be pretended that it is included in the term “ground rent;” and if not, there is no other used bearing the remotest analogy to it: so that it would appear not to have been made the specific subject of taxation. And this perhaps may be accounted for from the circumstance that a rent charge, properly speaking, has been rarely known to exist in this state. A rent charge strictly, as I conceive, arises where a man being seised in fee of lands, grants a rent in fee or for life out of them, with a power to the grantee to distrain. And since the passage of the statute quia emplores terrarum, 18 Ed. 1, if the owner of lands in fee make a feoffment of them in fee, reserving by the same deed a rent to be paid to himself and his heirs with the right of distress, it has been considered in England a rent charge also. In some respects, however, these rents are certainly very different from each other: and particularly as it regards the consideration from which the payment of them arises. The payment of the first is founded upon a consideration actually paid to the grantor of the rent, and received by him at or before the time of granting it, which has no connexion with the enjoyment of the land whatever; and hence if the title of the grantor to the land upon which the rent is charged, prove defective, and he is evicted by a title paramount, still the rent is not extinguished, but must be paid. But in the second case the continuance of the rent and the payment of it depend entirely upon the right of the grantee to the future enjoyment of the land under the title conveyed to him by the grantor, to whom and whose heirs and assigns the rent is to be paid ; so that if the grantee of the land, his heirs or assigns be evicted and deprived of the enjoyment of it by [117]*117any one having a title paramount, the rent ceases and becomes extinct. And in this respect it bears a strong analogy to the rent in question; the consideration for ihe payment whereof may be said to be most emphatically the enjoyment which the plaintiff had of the lot, or at least the absolute and perfect right which he had to the enjoyment thereof under the grant originally made by James Hamilton. It is this that imposed upon him the obligation to pay the rent, and gave to John B. Newman, as the assignee of Hamilton, a corresponding right to demand and receive it, in the same manner as if it had been a rent service. A rent charge, on account of its being founded on a consideration altogether unconnected with the enjoyment of the land and being in nowise a return for the same, but made a charge upon it, was not favoured, and -was considered as against common right. Ground rents, however, in Pennsylvania, have been looked upon very differently. They have been regarded rather favourably, and were introduced originally with a view to encourage and promote the improvement of the land granted whereon the rents were reserved, by requiring buildings and other improvements to be erected upon it. The object was certainly desirable, and I think it will not be denied that it has been attained by it. The great success which seems to have attended this mode of procuring the improvement of lands, shows its peculiar adaptation to promote the end intended ; and instead of being laid aside or looked on with disfavour, has for this reason been greatly extended of late. Ground rents have never been considered here as being against common right, or as militating against any principle of either justice or sound policy:. Under this view I am totally unable to discover any reason why they should be placed on the same footing here, that rent charges are in England. And although it has been decided in England in the cases of Lindon v. Collins, Willes’s Rep. 429, and Bulfit v. Clarke, 4 Bos. & Pull. 56, that a rent charge is not embraced by the terms of the 22d sect, of 11 Geo. 2, c. 19, which is somewhat similar in its terms to the tenth section of our act of 1772, because the grantor of the rent, who was the party bound to pay if, enjoyed no land under d grant or demise from the grantee
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The opinion of the Court was delivered by
Kennedy, J.
—Although the counsel for the plaintiff in error have assigned, numerically, no less than twenty-seven errors, yet they have, in their argument, reduced the number to five, which they rely on as being sufficient to obtain a reversal of the judgment.
1. That the court, on the trial of the cause, erred in permitting the defendant to exhibit a title different from that mentioned in his cognizance as bailiff of John B. Newman.
%. In not instructing the jury that the judgment in the action of partition in 1830 invested the parties thereto with the legal title to their respective interests in severalty.
3. In charging the jury that if they believed the testimony of general Cadwalader, it showed that the defendant had sufficient authority as the bailiff of John B. Newman to make the distress.
4. In instructing the jury that the written letter of attorney executed by John B. Newman and others to the defendant, gave him sufficient authority to make the distress. •
5. In deciding that the plaintiff could not claim to have deducted from the amount of the rents, the taxes or any portion thereof paid by him, which had been assessed upon the lot of ground out of which the'rent issued.
In regard to the questions involved in the first three of these errors, I do not know that any thing can be added to the very able and lucid argument of the learned judge of the district court, which would tend to show more clearly than he has done that they were decided correctly. As to the first, there is really no foundation for it; because the title shown on the part of John B. Newman, for whom the defendant acted as bailiff in distraining for the rent in question, was perfectly consistent with all that was alleged in the cognizance. In that the defendant states the rent to have become due from the plaintiff by the enjoyment of the lot of ground therein described under a grant thereof from James Hamilton to Thomas Cookson, re[116]*116sewing the rent therein mentioned; of the latter of whom the plaintiff became assignee: and that John B. Newman became the assignee of James Hamilton, without specifying the several links in the chain of conveyance from Hamilton down to Newman, or showing distinctly by what means the latter became the assignee of the former. This was certainly not necessary, because the tenth section of the act of assembly of the 21st of March 1772, in order to get rid of the difficulties that arose in making avowries or cognizance upon distresses for rent, has made it sufficient for defendants in replevin to avow or make cognizance generally, without setting forth the title of the landlord or lessor. It is alleged, however, that the rent in question is a rent charge, and that this section of the act does not embrace it. It may be questioned whether it can be properly and strictly called a rent charge in Pennsylvania. It is known here specifically by the name of “ ground rent,” and is mentioned and designated by this name in our legislative acts. By the act of the 11th of April 1799, passed for raising and collecting county rates and levies, ground rents are.specifically mentioned. The legislature, in designating and pointing out the various objects thereby required to be taxed, have not mentioned rent charge nor used the term at all: neither have they used any other that would seem to embrace it singly or in any other way whatever. For it cannot be pretended that it is included in the term “ground rent;” and if not, there is no other used bearing the remotest analogy to it: so that it would appear not to have been made the specific subject of taxation. And this perhaps may be accounted for from the circumstance that a rent charge, properly speaking, has been rarely known to exist in this state. A rent charge strictly, as I conceive, arises where a man being seised in fee of lands, grants a rent in fee or for life out of them, with a power to the grantee to distrain. And since the passage of the statute quia emplores terrarum, 18 Ed. 1, if the owner of lands in fee make a feoffment of them in fee, reserving by the same deed a rent to be paid to himself and his heirs with the right of distress, it has been considered in England a rent charge also. In some respects, however, these rents are certainly very different from each other: and particularly as it regards the consideration from which the payment of them arises. The payment of the first is founded upon a consideration actually paid to the grantor of the rent, and received by him at or before the time of granting it, which has no connexion with the enjoyment of the land whatever; and hence if the title of the grantor to the land upon which the rent is charged, prove defective, and he is evicted by a title paramount, still the rent is not extinguished, but must be paid. But in the second case the continuance of the rent and the payment of it depend entirely upon the right of the grantee to the future enjoyment of the land under the title conveyed to him by the grantor, to whom and whose heirs and assigns the rent is to be paid ; so that if the grantee of the land, his heirs or assigns be evicted and deprived of the enjoyment of it by [117]*117any one having a title paramount, the rent ceases and becomes extinct. And in this respect it bears a strong analogy to the rent in question; the consideration for ihe payment whereof may be said to be most emphatically the enjoyment which the plaintiff had of the lot, or at least the absolute and perfect right which he had to the enjoyment thereof under the grant originally made by James Hamilton. It is this that imposed upon him the obligation to pay the rent, and gave to John B. Newman, as the assignee of Hamilton, a corresponding right to demand and receive it, in the same manner as if it had been a rent service. A rent charge, on account of its being founded on a consideration altogether unconnected with the enjoyment of the land and being in nowise a return for the same, but made a charge upon it, was not favoured, and -was considered as against common right. Ground rents, however, in Pennsylvania, have been looked upon very differently. They have been regarded rather favourably, and were introduced originally with a view to encourage and promote the improvement of the land granted whereon the rents were reserved, by requiring buildings and other improvements to be erected upon it. The object was certainly desirable, and I think it will not be denied that it has been attained by it. The great success which seems to have attended this mode of procuring the improvement of lands, shows its peculiar adaptation to promote the end intended ; and instead of being laid aside or looked on with disfavour, has for this reason been greatly extended of late. Ground rents have never been considered here as being against common right, or as militating against any principle of either justice or sound policy:. Under this view I am totally unable to discover any reason why they should be placed on the same footing here, that rent charges are in England. And although it has been decided in England in the cases of Lindon v. Collins, Willes’s Rep. 429, and Bulfit v. Clarke, 4 Bos. & Pull. 56, that a rent charge is not embraced by the terms of the 22d sect, of 11 Geo. 2, c. 19, which is somewhat similar in its terms to the tenth section of our act of 1772, because the grantor of the rent, who was the party bound to pay if, enjoyed no land under d grant or demise from the grantee who was to receive the rent, which seemed to be requisite in order to bring the case within the terms of the section ; yet a ground rent seems to come very fairly within its terms ; for the tenant of the lot, of whom the rent is demanded here, has occupied and enjoyed it under a grant from one under whom the party demanding the rent claims as assignee. The section runs thus—“ it shall and may be lawful for all defendants in replevin to avow and make conusance generally that the plaintiff in replevin, or other tenant of the lands and tenements whereon the distress was made, enjoyed the same under a grant or demise at such a certain rent or service during the time wherein the rent or service distrained for incurred, which rent or service was then and still remains due, without further setting forth the grant, tenure, &c.” Now although the terms of this section may not literally embrace what was called a [118]*118rent charge before the passage of the statute quia emptores, yet it is evident that ground rents may well be included in the terms used : and as the evil intended to be remedied was quite as great in cases of distress for them as for any other rents; we ought, therefore, to conclude that they were intended to be embraced. Indeed this ought to be the conclusion unless it were clear that they were intended to be excluded. And upon this principle it would seem that the statute of 11 Geo. 2, c. 19, has been held in some of its provisions to extend to a rent charge as well as other rents. For instance the twenty-third section, which authorizes sheriffs in the execution of writs of replevin founded upon distresses for rent, to take bonds with sureties of the plaintiffs, and to assign the same to the defendants in cases where the plaintiffs fail to prosecute their writs successfully, has been decided to embrace the case of a replevin sued out for goods dis-trained on account of a rent charge, and that the sheriff, in such case, may take a bond and assign it as in case of a distress for any other species of rent. Short v. Hubbard, 2 Bing. 349; 9 Eng. Com. Law Rep. 429. So in practice the first section of the act of 1772, which authorizes the sale of goods distrained for rent, has ever been considered as embracing ground rents.
It has also been objected that the title produced by the defendant on the trial, showed that John B. Newman was merely a trustee, and therefore at variance with the allegation contained in the cognizance. Substantially, the allegation in the cognizance is, that John B. Newman, as assignee, not meaning necessarily the immediate assignee of James Hamilton’s right reserved in his deed of grant to Thomas Cookson of the lot of ground, was entitled to demand and receive the rent therein mentioned, which had accrued from the enjoyment of the lot by the plaintiff as assignee of Cookson, under the deed of grant from Hamilton to him.. In short, that John B. Newman was legally entitled to demand and receive the rent as it became due; and if not paid, had a right to distrain for it. Now, although John B. Newman, by the terms of the deed of the 26th of August 1818, would be considered and treated in equity as a trustee, yet at law he must be considered the legal owner of the rent, and as having a right to receive and to enforce the payment thereof to him, when due, by any lawful means that he pleases to resort to. The rents being granted to him in fee for the use of himself, his heirs and assigns, to receive the same in trust for the benefit of others named in the deed, the statute transferring uses into possession does not operate on the second or ulterior use. At law it is considered repugnant to the first use, which is in favour of Newman and his heirs; and it is in equity only that he will be considered a trustee. This second use, then, not being executed by the statute, he had an unquestionable right to distrain for the rent: so that in a legal point of view, the title of Newman to the rent, as disclosed by the evidence, accorded perfectly with all that was alleged in the conusance. We [119]*119therefore think that the counsel for the plaintiff have failed to sustain their first point.
As to the second, we think the direction given by the district court on the effect of the action of partition, and the judgment therein, was correct. The partition was intended to operate upon the equitable interests of the parties concerned, and not upon the legal title and rights in the estate.
In regard to the third point complained of as error, we also think that the instruction of the judge to the jury was perfectly correct in every particular. He told them, that if they believed general Cadwalader, his testimony established, most clearly, a parol authority given by Newman to the defendant to make the distress; and that such authority was all-sufficient. In this he is fully sustained by Lamb v. Mills, 4 Mod. 378; Trevillian v. Pine, 11 Mod. 112; Manby v. Long, 3 Lev. 107; Br., Bailie, pl. 2; Ibid. Traverse, pl. 3; 1 Bac. Abr., Bailiff, 366 (C.); Anonymous, 1 Salk. 191.
As to the fourth matter in which it is alleged that the court erred. It is wholly immaterial whether his honour the judge be correct or not in his construction of the letter of attorney, because it was not necessary, in the slightest possible degree, for the defence of the defendant. His authority to make the distress was most amply and decisively established without it, by the testimony of general Cadwalader, which went to the jury without the least attempt on the part of the plaintiff to disprove it, or to detract from its credit in any way whatever. Hence the jury were bound to believe it, and to give to it legal efficacy: and liad they done otherwise, it would have been the duty of the court to have granted a new trial.
If, however, the authority of the defendant to make the distress for the whole of the rent due from the plaintiff had not been thus established, I am inclined to think that the letter of attorney would not have been sufficient to authorize it. From its tenor and purport it appears to have been given for the purpose of enabling the defendant to receive and collect that portion only of the rent due which was coming to Louis O’Bierne and wife, and not that coming to the other cestuis que trust.
The question embraced in the fifth point, or last error insisted on in the argument, presents no difficulty whatever. The counsel for the plaintiff, however, for the purpose of sustaining their proposition in relation to it, have referred us to the sixth section of the act of the 3d of April 1804, making every tenant who occupies or possesses lands or tenements liable to pay all taxes becoming due on them during his occupancy or possession; arid giving him a right to recover whatever he may pay in discharge thereof, from his landlord, by action of debt; or at his election to defalcate the same from the payment of the rent due to his landlord. This section of the act of 1804 is clearly not applicable to taxes assessed upon ground rents, but to taxes assessed upon lands. It must be observed that they are made separate and distinct subjects of taxation by the eighth section of the [120]*120act of the 11th of April 1799. The propriety of this distinction is obvious, as I conceive, because they are separate and distinct estates in fee, belonging to different owners, and from their nature cannot beheld otherwise; for the instant that they become united in the same person as owner thereof, the ground rent is thereby merged and extinguished. Had the taxes for which the plaintiff claimed a set-off been assessed upon the ground rent in question, there would have been some colour of equity in his claim. But that was not the case; they were assessed upon the land, or the lot, which was his own property, and therefore a charge; which, according to the spirit of the section relied on, he was bound to pay out of his own pocket. If he permitted the lot to be valued and assessed without making it known that he held it subject to the payment of the ground rent, the fault, if any, was his own, and he must therefore put up with the loss attending it; he cannot, certainly, on that account, claim a deduction from the amount of the ground rent. There is no ground, however, for supposing that that was the case; on the contrary, we must presume that it was rightly done, and that he got credit for the ground rent in the valuation made by the assessors of the lot preparatory to its being assessed as his property. But admitting that the assessors neglected to take an account of the ground rent, as they were required by the eighth section of the act of 1799; and that by this means it escaped being assessed and taxed; still it furnishes no sufficient reason why the ground rent landlord should bear any portion of the taxes assessed upon the lot. In order to charge a man with taxes, it must appear distinctly by the assessment that they have been assessed either against himself or his property, except in the case of tenants at will, or for a term of years, occupying lands, who are made liable to pay the taxes assessed upon such lands in the first instance, subject to the right of being reimbursed by their landlords.
The counsel of the plaintiff have cited in support of their proposition on this last point, the cases of Brewsler v. Kitchin, 1 Salk. 198; 2 Salk. 615; S. C., 1 Lord Raym. 317; Peart v. Phipps, 4 Yeates 386; and Sandwith v. Desilver, 1 Browne’s Rep. 221: but they have no direct bearing upon it. The question in Brewster v. Kitchin, was as to the extent of a covenant made by the tenant of the land, for paying a rent charge c< clear of any taxes on the land or said rent,” 5 Mod. 369; and held that he was bound to pay the taxes on both, according to the terms of his covenant. The taxes in Peart v. Phipps were taxes assessed upon the ground rent and not upon the lot, which the grantee of t'he lot had covenanted to pay “ clear of all charges and assessments whatever; and ruled that by the terms of his covenant he was bound to-pay them. But it is clear, that if he had not bound himself by his covenant to pay these taxes, the owner of the ground rent would have been liable for them. The question in Sandwith v. Desilver appears to have been nearly the same with that in Peart v. Phipps, and to have been decided in the same way.
Judgment affirmed.