Tilghman C, J.
In 'this case there are two questions. 1. Whether Andrew Hamilton, the survivor of James Hamilton, be entitled to receive the whole of the sum of 36,000 dollars, agreed by the defendants to be paid to the said Andrew and James, and their heirs, yearly, by certain articles of agreement referred to in the case stated for the opinion of this Court. 2.. If Andrew Hamilton be not entitled to receive the whole, to whom is^the part belonging to the estate of James, to be paid ; to his administrators, or to his heirs ?
It is stated, that the contract on which this action is founded, related to a tract of land, of which James and Andrew Hamilton were .seised in fee simple as tenants in common, two-thirds belonging to James, and one-third to Andrew. When the nature of the contract is fully understood, there will be no difficulty in deciding the law. The object was, to sell the land to the defendants, securing to James and Andrew Hamilton, 36,000 dollars a-year charged on the land. In order to effect this, powers of attorney were to be given by Andrew and James Hamilton to one of the defendants, authorising him to make sales of separate parcels of land, in the names of Andrew and James Hamilton, reserving a perpetual ground rent, payable to the said Andrew and James Hamilton, and their heirs as tenants in common. When as much land was sold, as should produce a yearly rent of 36.000 dollars, secured by brick or stone buildings on each parcel, Andrew and James Hamilton were to convey the residue of the land to the defendants in fee, as tenants in common, and release them from all demand. But in the meantime, the defendants were to pay to the said Andrew and James, and their heirs, the sum of 36,000 dollars a-year. Thus, the legal estate was to remain in Andrew and James Hamilton, until they were completely secured in an annuity of 36.000 dollars charged on the land. But in case this should not be completed in the course of 15 years, Andrew and James Hamilton were to have a right to revoke the -powers of attorney, and proceed themselves to let out the remainder of the land upon ground rents ; and as soon as they had. secured the yearly sum of 36,000 dollars, they were to convey the residue of the land to the defendants. But the defendants were in all events to be responsible for the yearly sum of 36.000 dollars, until it was secured, out of the land, to Andrew [525] and James Hamilton. It appears to me, that this annuity of 86,000 dollars, was considered by all parties in the nature of real estate, descendible to the heirs of James and Andrew Hamilton, according to their interests in the land, respectively. For, in the first place, the legal estate remained in them, until the annuity was secured; and next, it is to be remarked, that the ground rents were made payable to them and their heirs, as tenants in common. And as fast as these ground rents were secured, by brick or stone buildings, the Hamiltons were to accept them, in part of the 36,00® dollars, and the responsibility of the defendants ceased pro tanto. Now it cannot be conceived, that the annuity was intended to be of one nature, when paid by the defendants, and of another, when paid by the tenants who purchased on ground rent. Had it been said expressly, that the annuity was to be paid as rent, I presume there could have been no doubt of its being incident to the reversion, and descendible to the heirs of each. Why then should it not descend, under the expressions which are used — -paying to them and their heirs, for the premises hereinafter described? What is this but paying as rent? Paying an annual sum for the land, must have been intended paying rent for the land.
But, whatever may be supposed to have been the general intention of the parties, the plaintiff relies on the words of the covenant, which he contends, constitute a personal covenant, by which the annuity was payable to himself and James Hamilton,jointly, and consequently, that he, being the survivor, is entitled to the whole. The words are these: — “ The defend- “ ants covenant, promise, and agree, to, and with, the said “ James and Andrew Hamilton, and their heirs, that they “will well and faithfully pay to the said James and Andrew “ Hamilton, and their heirs, for the premises before mentioned “ and described, the sums of money hereafter stated, &c. &c.” The payment to them and their heirs, is decisive, that the annuity was intended to descend to the heir; otherwise, the words executors and administrators would have been used. And if the annuity was to descend to the heirs, it will follow, that although the words of the covenant are joint, (to ■ pay to them and their heirs,) yet they shall be construed as several, in order to effect the intent of the parties; viz. to secure a payment to each, of a sum proportioned to his interest in the land. That a covenant may descend to heirs, when the subject [526] matter is land, and that joint words may be construed seve~ rally, in order to effectuate the intent of the parties, is proved by tbe case Wotton v. Cooke. Dyer, 337. b. A. B. & C. holding land as coparceners, and having bought other land, with an intent that one-third should belong to each, they covenanted, each to the others, et utrique eorum, (the covenants were in Latin,) and to their heirs and assigns, that in case of death the survivor would make to the heirs of those who died first, such conveyances of one-third part, as should be by them devised, &c. A. & B. died, and the heir of A. brought suit against C. the survivor, for not making him a conveyance of one-third. It was objected, 1st, that the covenant was to both, (utrique,) and not to each, severally. 2d. That the covenant was personal, and therefore the executor, and not the heir, was entitled to the action. But, upon both points, the Court decided for the plaintiff. Justice Windham1 s case, 5 Co. 7, is strong to shew that the intent of the parties is much regarded in construing covenants, and that this intent is deducible from the nature of the interest of the several parties. In that case, the opinion of the Court is given on several points. 1. .Joint words are construed severally, in respect of the several interests of the grantors, as if two tenants in common join in a grant of a rent charge, yet, in law, the grant shall be several, although the words are joint. 2. J oint words are construed severally, in respect of the several interests of the grantees. A warranty made to two, shall enure as several warranties, because they are severally seised, the one of one part ef the land, and the other of the residue. 3. If two coparceners make a feoffment in fee, rendering a rent to them and their heirs, the heirs of both shall inherit, because their right in the land was several. From the principles established by these cases, it follows, I. that the law will support the covenant in the case before us, as descendible to the heirs, and not the executors of the covenantees. 2. That, although joint words are used, yet they shall be construed severally, because the interests of the covenantees were several.
But the defendants rely, principally, on another covenant, towards the end of the agreement; by which it appears, as they say, that the whole covenants were intended to be personal. This covenant is as follows : “ Finally, it is understood and agreed, by the said parties, that nothing [527] herein contained, shall be deemed, or taken, to prejudice the right of the said James and Andrew Hamilton, their■ heirs, executors, administrators, or assigns, to have recourse to law, against the said Thomas Qadwalader, See. or either of them, their, or either of their heirs, executors, administrators, and assigns, for any breaches of the covenants herein contained, See. whether in relation to the payment of money, or otherwise.” The object of this covenant, plainly was, to remove all doubts concerning the liability of the defendants for the annuity of 36,000 dollars, until the same was secured by ground rents charged on the land. The word heirs is still retained, when speaking of James and Andrew Hamilton, because that word was necessary, in order to give reference to the former covenant, by which the money was made payable to them and their heirs. But to say that because the words executors and administrators are also inserted, it shews an intent to destroy the very nature of the principal covenant, and to make the money payable to the executors, and not to the heirs, is, in my opinion, to contend for a most forced and unnatural construction, tending to disjoint the whole instrument, and subvert the main intent of James and Andrew Hamilton. The words, executors and administrators, were probably thrown in, from caution, at the end of a long agreement, because some of the preceding covenants might, possibly, have been such as would fall upon the executors or administrators of the covenantees. I should say, then, that they were inserted by way of caution, if no subject could be found, on which they might operate. But a case was put by the defendant’s counsel, in which, perhaps, they might operate. Suppose the whole land let out on ground rent, and an annuity less than S6,000 dollars produced. In such case, the defendants would stand responsible for the deficiency; and yet, as there would be no land, to which that deficiency could relate, perhaps this covenant might be considered as personal, and if so, the executors, and not the heirs, of the covenantees must bring suit for a breach of it. At all events, I am very clear, that this last covenant did not alter the nature of the preceding covenants. Upon the whole, it is my opinion, that the covenant for payment of the 36,000 dollars, by the defendants, to James and Andrew Hamilton, is to be construed severally, and descends to the heirs of each, according to their several interests in the land.
[528] Gibson J. gave no opinion, not having heard the argument..
Duncan J.
The first object of inquiry is, did this arrangement °f the estate, convert, instanter, the whole of this immense property into rights merely personal; or, did it remain, under its new modification, the real estate of James and Andrew Hamilton, as tenants in common, in their respective proportions, James being entitled to two-thirds, and Andrew to one-third. The mind is startled at the idea of the great change. For if such be the effect of this agreement, these consequences would follow; In the event of James Hamilton dying intestate, unmarried, and without issue, living his father or mother, the father or mother would have taken all, in exclusion of his brothers and sisters. If he left a wife and no child, she would have had the one half, absolutely; and if this be a joint personal covenant, then the release of one of the covenantees would bind the other. Fell & Beal v. Forma, 14 Johns. 172. This interest, whatever it remained under the agreement, had some fixed character ; it was either real or personal; it could be subject to no future change. On this view of the subject, it is difficult to maintain, that it became personal estate. For, as the lots were let on ground rent, the annuity became a ground rent 'pro tanto, and the whole, in the contemplation of the parties, might, eventually, be a ground rent interest, and be restored to its original state, real estate. In this event, the heirs, and not the personal representatives, of James Hamilton, would take an inheritable estate. This would be inconsistent totally with personal estate. For, if personal rights merely, and they went to personal representatives, by release, by assignment, the personal representatives might dispose of the whole. In what an unprecedented situation would this property be, till the whole ground interest would be secured? If personalty, in a constant state of diminution, as parts were let out on ground rent, until the whole was converted again into real estate. Such an interest, so variable and floating, the law knows not. As James Hamilton held this estate, at the time of his death, it would go over to his personal representatives, or to his heirs at law, in whom it would remain either as real or personal, without fluctuation. It was an event within the view of the parties, that the whole an[529] nuity would be securéd by rents issuing out of the land; for the agreement states, that whenever the ground rents reserved, are equal in amount to the whole annuity, and the arrears are paid, then the covenants entered into by Thomas Cadwalader and others, are to be taken as completely satisfied and extinguished. Now as the lots were let out on ground rent by the agent, and the ground rents were to be reserved to James and Andrew Hamilton, and their heirs, as tenants in common, it is impossible to reconcile this with a construction, that persons other than the heirs, on the death of either, were to receive the proportion of the person dying. I cannot doubt, but that these interests were descendible, let them be considered' as corporeal estates, or incorporeal hereditaments, or personal annuities. For it must be constantly kept in view, that the legal estate remained in James and Andrew Hamilton, and that they were not bound to part with the whole of it in any event, till the whole annuity was secured by satisfactory reservations of ground rents, issuing out of the land, reserved to them and their heirs, as tenants in common, nor to part with the title of any portion of it, unless such proportional reservation of ground rents were made to them and their heirs, as tenants in common. It cannot be supposed, that in a transaction exceeding in point of value, any contract hitherto entered into by individuals in this country, there was a want of circumspection, and when, by the express words of the agreement, the defendants covenanted to pay the annuity to James and Andrew Hamilton, and their heirs, that had this been intended as a covenant merely personal, the appropriate words of such covenant, executors and administrators, were omitted by mistake; and when the annuity is made payable to them in reservations of ground rents, to them and their heirs as tenants in common, that executors or administrators were intended. How all this can be reconciled with the construction, that this is not only a personal annuity; but a personal covenant; not only a personal covenant, but a joint one, going to the personal representatives of James Hamilton, and the right to bring action, and to receive the money surviving to Andrew, I have not been able to discover. The title remaining in James and Andrew Hamilton, till the completion of the contract, these articles are only executory ; and if a bill was filed in a Court of Chancery, by the heirs of James Hamilton, to compel the [530] specific execution, I am entirely satisfied?'that that Court would decree the payments of the proportional part to'each of them ; and it is equally clear to me, that even in a. Court of i a j . ’ law,, this would be .considered as in the nature of an annuity or . rent, an incorporeal hereditament savouring of the realty; issu- í ing out of a corporeal one and annexed to it; with all the qualities of an estaté in fee simple, inheritable, the subject of entail, husband tenant by the curtesy; wife tenant in dower. If there was any thing. wanting to confirm this opinion, my conviction Would be riveted by the clause of re-entry, to James and. ■ Andrew, or their heirs or assigns. For, it could not be, ■ that Andrezv could, as surviving James, support covenant for the arrears, including James’s two-thirds ; and that the heirs ' of James could re-enter for the same arrears. Admit for a moment that they were joint-tenants of this incorporeal hereditament, it would seem to me, that the act concerning • joint-tenancy, (31st March, 1812, 5 Smith, 395,) which pro- - vides, that “ if partition be not made between joint-tenants, > “ whether they be such as might have been compelled to “ make partition or not, or of whatever kind the estates or “ thing held or possessed be, the parts of those who die first, > “ shall not go to the survivor, but shall descend or pass by - “ devise, and shall be subject to debts, charges, curtesy or * “ dower, or transmissable to executors or administrators, • “ and be considered to every other intent and purpose, in the • “ same manner as if such deceased joint-tenants had beente-.i “ nants in common,” operated as a complete severance on the - death of James ; that these words are sufficiently comprehend sive to embrace every estate, whether real or personal. .If • personal, it is transmitted to the executors or administrators; ■. if real, it descends to the heir, as if such interest had been-several. Nor do I find any difficulty respecting real estate, from" the word “ holden.” For the only difference in estates in fee, between the two species of hereditaments, is, that in that of corporeal inheritance, a man shall be said to be seised in his demesne as of fee, and of an incorporeal one, he shall be said to be seised as of fee, and not in his demesne. 2 Bl. Com. 104. This rent being reserved to James and Andrew Hamilton, is a fee ; for fcedum est quod quis tenet sibi ■ et hceredibus suis, sive sit tenementum, sive reditus. 2 Bl. Com. 106'. But could James and Andrew Hamilton be said to be joint-tenants in-fee? ■ The estate wants the first property of a joint-tenancy, unity of interest. Introduce once the idea [531] of separation, and there is an end of the joint-tenancy. Now, it is not pretended, but that James Hamilton, in his lifetime, was entitled to two-thirds of the estate, out of which the “ # rent is to issue, and Andrew Hamilton, but to one-third ; and that their interest in the rent remained the same. They then had not one and the same interest. Joint-tenants are said to be seised per my et per tout; by the half or moiety, and by all. Each has an .undivided moiety of the whole. The estate thus was of a different nature ; a tenancy in common ; but if a joint-tenancy, the death of James severed it; and his two thirds descended to his heirs at law. If this be so, then, most clearly, the action does not survive to Andrezv to receive James'1 s arrears ; and if the words of this covenant were even joint, the law is settled, in coincidence with the principles of reason and justice, that though a man covenant with two or more jointly, yet if the interest and cause of action of the covenantees be several and not joint, the covenant shall be taken for several, and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint. Eccleston and others v. Clipsham, 1 Saund. 153, note 1. But where two persons covenant jointly and severally with another, the covenantee may bring an action against one of the covenantors only, though the interest of the subject matter be joint. It would appear to me, that where the interest of the covenantees is several, such covenants should be moulded according to the several interests of the parties, and each shall only recover for a breach, so far as his own interest extends.
But it is contended, that there is an express personal joint covenant in the last clause ; “ finally, it is agreed and under- “ stood by the said parties, that nothing herein contained, “ shall be deemed, construed or taken, te prejudice the right “ of the said James and Andrezv, and their heirs, executors, “ administrators, or assigns, to have recourse to law against “ the said Thomas Cadzvalader, and the others, or either of “ them, their or either of their heirs, executors, administra- “ tors, and assigns, for any breaches of the covenants herein “ contained, on their part to be done, and performed, whe- “ ther in relation to payment of money or otherwise.” This clause was introduced from abundant caution, and certainly was intended to provide for the event of the whole estate not producing a ground rent equal to 36,000 dollars per year. Give [532] it its utmost extent, it would be only giving James and An drezu the right of election as in the case of an annuity charged on land, to charge the person of the grantor by writ °f annuity, and having made this election and recovered Judgment, the land is discharged, and the remedy only personal. Here was no such election by James Hamilton or by his heirs. Here is no judgment. In the case of Bantleon v. Smith, in this Court, the difference is taken between an annuity granted by the proprietor of land, and a case where the grantor grants the land itself, reserving a rent; for there no writ of annuity lies. For it was there held, that the proprietor of such ground rent in fee, who obtains a judgment in covenant for the arrears, and sells the land on a judgment obtained in an action of covenant, is entitled to be paid the whole rent in arrear, out of the proceeds, in preference to older judgments. 2 Binn. 146. A perpetual charge on the public revenue in England, is considered by the act of 4 and S William U1 Mary, as real property; but in subsequent statutes, it is expressly made personal property. Yet without that declaration, it would remain real property. The grants of king Charles II, to his natural children, were payable out of the hereditary excise granted him by Parliament, and have been determined to be real estates. They have been considered in that light, and settled as such. 2 Vez. 173. So of shares in the New River Company. Of this interest, fines may be levied; and in this case, they are forced to levy fines in all the counties through which the New River runs. 2 Vez. 182. But an annuity in fee, not issuing out of lands, though a kind of personalty, goes not to executors, nor is it assets in their hands. It is a personal, inheritance descendible to the heir, and even a conditional fee of such personal chattel, still exists, not affected by the statute de donis, as a qualified or conditional fee. For an annuity in fee, granted by the king out of Barbadoes duties, is not a rent nor realty within the statute of frauds, or statute de donis; but being settled on A, and the heirs of his body, is a fee simple conditional at common law; and A, having had Issue, may bar possibility of reverter. Earl of Stafford v. Buckley, 2 Vez. 170. Such annuity will not go to executors, by being named as such; unless it is given to them by will. Ibid. Not only the grantee of such annuity, but his heir, and his and their grantee, may have a writ of annuity. Co. Lit. 144. b. 20. a. If I, [533] by my deed, grant an annuity to a man, and the heirs of his body, this only chargeth my person, and concerneth not land, nor savoureth of the realty ; this is not within the statute de ( donis, but-he hath a fee conditional, as before the statute, and the grantee, by his grant or release, may bar his heir, as he might have done at the common law; for that in this case, he is not restrained by the statute. Fitzherbert, tit. annuity, and Co. Lit. 144. From these principles it is evident, that where an annuity is charged on land, it may be real or personal, at the election of the holder. He may proceed against the land, or against the person. If it is out of the coffers, it is personal only as to the remedy ; but the property itself is real, as to its descent to the heir. An annuity issuing out of land, may be entailed, but a personal annuity is not the subject of entail. But when a personal annuity is granted, with words of inheritance, it is descendible. It may be granted in fee, Of course, it may as a qualified or conditional fee.
In any view I have been able to take of this subject, interesting as it is to all parties, I am clearly of opinion, that Andrew, as surviving James, can&ot support this action, but that the thing itself and the right of action, is vested in the heirs of James.