By the court,
Hogeboom, J.
The questions arising in this case are most of them similar to those in the case of Main v. Green, just disposed of.
To avoid confusion it will be convenient to consider these points in the order above stated.
1. The first point made by the defendants is that the deed [464]*464from Van Rensselaer to Granger, of January 21, 1797, is a deed of assignment, and not of lease or subinfeudation, leaving no reversion in the grantor, and did not create the rela-. tians of landlord and tenant, and there being neither privity of estate, nor privity of contract between the plaintiff and the defendants, the defendants are not liable.
These objections are all disposed of by the decision of the court of appeals in Van Rensselaer v. Hays, (19 N. Y. Rep. 68.) In that' case the action was covenant, to recover rent upon a conveyance in fee by the devisee of the lessor against the assignee ■ of the lessee of part of the premises. The instrument upon which the right to recover was based, was in all material respects like the one under consideration. The questions presented were substantially similar, and the court of appeals held the plaintiff entitled to recover. They held 1. That it was the manifest design of the parties to the instrument to create relations which should exist in perpetuity and to impose the obligation to páy the rent and confer the right .to receive the rent upon the heirs and assigns of the original parties; and that it was the object of the legislative act of 1805 to recognize the long existence and validity of such relations, and to make the grants available according to the intention of the parties. (Id. 71.) 2. That while under such an instrument there was no reversion in the grantor in the sense of the law of tenures, and therefore no right of distress at common law, yet the right of distress and re-entry being conferred by the terms of the deed, the rent was a valid rent charge and available to the grantor by means of the clause of distress. (Id. 76, 77.) 3. That this rent, though not strictly an estate in the land, was nevertheless a hereditament and descendible to the heirs of the grantor. (Id. 77 to 79.) 4. That while some English cases, and the authority of Sir Edward Sugden, led to the conclusion that the covenant to pay the rent, in an instrument of this character, was a covenant annexed to the thing granted, and ran with the rent in the hands of an assignee, the rent charge being [465]*465an incorporeal hereditament issuing out of the land and the land being bound by it, nevertheless doubt was thrown upon the correctness of that proposition as being the law of this state by the case of Devisees of Van Rensselaer v. Executors of Platner, (2 John. Cas. 26.) But this being the state of things, the statute of 1805 was passed, giving to grantees of lands and rents and the reversion thereof and the assignees of the lessor, in grants or leases in fee reserving rents, as had been before done in leases for life or years, the same remedies by entry, action, distress or otherwise, for the nonperformance of any agreement in the lease or grant, or the recovery of any rent, or for the doing of any act of forfeiture, as their grantor or lessor had or might have had if the reversion had remained in him; that the act was constitutional, and the legislature had a right to consider the interest of a grantor in fee reserving rent as a reversion, pro hac vice, if it thought proper to do so; and that as a result of this legislation, whether it would have been so at common law or not, the devisee of Van Bensselaer (and by consequence any other assignee of the lessor) had a right to sue any one upon whom that covenant was binding. (Id. 79 to 86.) 5. That it was a debated question in the English courts whether an assignee of the grantee in such an instrument was liable upon the covenants in the deed, and it was the conclusion of Sir Edward Sugden, upon a review of the English cases, that he was; that the argument of the defendant that such covenants cannot by any form of stipulation in the deed be made to run with the land, except there be a reversion in the covenantee, does not rest upon any sound reason; that there exists a certain kind of privity between the parties; that the second section of the “ act to enable the grantees of reversions to take advantage of the conditions to be performed by the lessees,” taken in connection with the act of 1805, “ establishes a privity of contract between those holding a derivative title under both grantors and grantees, and the [466]*466intention of the legislature, apparently, was to place the assignees of both parties upon grants in fee where a rent was reserved, upon the same footing which was occupied by the assignees of the parties to a lease for life or years under the statute of Henry 8th, and the re-enactment of it in this country.” That the course of adjudication in this state for a long series of years assumed and established the liability of assignees of the grantee, upon grants or leases of this description, for the rent accruing after the assignment, and “necessarily affirmed that these covenants, as to their burden, ran with the estate of the grantee in the land; as those referred to under the preceding head determined that their benefit accompanied the estate of the grantor in the rents.” That these decisions accorded with the expressed, intent of the parties to the conveyance, and established a rule of property from which it would now be unsafe and improper to depart. They therefore held that the defendant, as the assignee of the lessee of a portion of the land granted, was liable in this action for a breach of the covenants. (Id. 86 to 94.)
I have quoted thus freely from the substance and in many instances from the language of the opinion of the court in the case above referred to, for the purpose of showing that all the more material questions presented on this argument were expressly disposed of and necessarily- decided in the case of Van Rensselaer v. Hays; and with the view of grouping together in a somewhat more compact form the conclusions and some of the reasons of the court in that case.
These questions cannot be regarded as any longer open to discussion in this court. They have been settled by a superior tribunal, and must form the rule .of action for us. It would be fruitless—perhaps indecorous—to examine at length the reasons upon which they are founded. It is sufficient to say that the questions are learnedly and ably discussed, and that the conclusions arrived at commanded the concurrence of all the judges who took part in the decision of the case.
2. It is urged that the defendant Haney Davis was entitled [467]
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By the court,
Hogeboom, J.
The questions arising in this case are most of them similar to those in the case of Main v. Green, just disposed of.
To avoid confusion it will be convenient to consider these points in the order above stated.
1. The first point made by the defendants is that the deed [464]*464from Van Rensselaer to Granger, of January 21, 1797, is a deed of assignment, and not of lease or subinfeudation, leaving no reversion in the grantor, and did not create the rela-. tians of landlord and tenant, and there being neither privity of estate, nor privity of contract between the plaintiff and the defendants, the defendants are not liable.
These objections are all disposed of by the decision of the court of appeals in Van Rensselaer v. Hays, (19 N. Y. Rep. 68.) In that' case the action was covenant, to recover rent upon a conveyance in fee by the devisee of the lessor against the assignee ■ of the lessee of part of the premises. The instrument upon which the right to recover was based, was in all material respects like the one under consideration. The questions presented were substantially similar, and the court of appeals held the plaintiff entitled to recover. They held 1. That it was the manifest design of the parties to the instrument to create relations which should exist in perpetuity and to impose the obligation to páy the rent and confer the right .to receive the rent upon the heirs and assigns of the original parties; and that it was the object of the legislative act of 1805 to recognize the long existence and validity of such relations, and to make the grants available according to the intention of the parties. (Id. 71.) 2. That while under such an instrument there was no reversion in the grantor in the sense of the law of tenures, and therefore no right of distress at common law, yet the right of distress and re-entry being conferred by the terms of the deed, the rent was a valid rent charge and available to the grantor by means of the clause of distress. (Id. 76, 77.) 3. That this rent, though not strictly an estate in the land, was nevertheless a hereditament and descendible to the heirs of the grantor. (Id. 77 to 79.) 4. That while some English cases, and the authority of Sir Edward Sugden, led to the conclusion that the covenant to pay the rent, in an instrument of this character, was a covenant annexed to the thing granted, and ran with the rent in the hands of an assignee, the rent charge being [465]*465an incorporeal hereditament issuing out of the land and the land being bound by it, nevertheless doubt was thrown upon the correctness of that proposition as being the law of this state by the case of Devisees of Van Rensselaer v. Executors of Platner, (2 John. Cas. 26.) But this being the state of things, the statute of 1805 was passed, giving to grantees of lands and rents and the reversion thereof and the assignees of the lessor, in grants or leases in fee reserving rents, as had been before done in leases for life or years, the same remedies by entry, action, distress or otherwise, for the nonperformance of any agreement in the lease or grant, or the recovery of any rent, or for the doing of any act of forfeiture, as their grantor or lessor had or might have had if the reversion had remained in him; that the act was constitutional, and the legislature had a right to consider the interest of a grantor in fee reserving rent as a reversion, pro hac vice, if it thought proper to do so; and that as a result of this legislation, whether it would have been so at common law or not, the devisee of Van Bensselaer (and by consequence any other assignee of the lessor) had a right to sue any one upon whom that covenant was binding. (Id. 79 to 86.) 5. That it was a debated question in the English courts whether an assignee of the grantee in such an instrument was liable upon the covenants in the deed, and it was the conclusion of Sir Edward Sugden, upon a review of the English cases, that he was; that the argument of the defendant that such covenants cannot by any form of stipulation in the deed be made to run with the land, except there be a reversion in the covenantee, does not rest upon any sound reason; that there exists a certain kind of privity between the parties; that the second section of the “ act to enable the grantees of reversions to take advantage of the conditions to be performed by the lessees,” taken in connection with the act of 1805, “ establishes a privity of contract between those holding a derivative title under both grantors and grantees, and the [466]*466intention of the legislature, apparently, was to place the assignees of both parties upon grants in fee where a rent was reserved, upon the same footing which was occupied by the assignees of the parties to a lease for life or years under the statute of Henry 8th, and the re-enactment of it in this country.” That the course of adjudication in this state for a long series of years assumed and established the liability of assignees of the grantee, upon grants or leases of this description, for the rent accruing after the assignment, and “necessarily affirmed that these covenants, as to their burden, ran with the estate of the grantee in the land; as those referred to under the preceding head determined that their benefit accompanied the estate of the grantor in the rents.” That these decisions accorded with the expressed, intent of the parties to the conveyance, and established a rule of property from which it would now be unsafe and improper to depart. They therefore held that the defendant, as the assignee of the lessee of a portion of the land granted, was liable in this action for a breach of the covenants. (Id. 86 to 94.)
I have quoted thus freely from the substance and in many instances from the language of the opinion of the court in the case above referred to, for the purpose of showing that all the more material questions presented on this argument were expressly disposed of and necessarily- decided in the case of Van Rensselaer v. Hays; and with the view of grouping together in a somewhat more compact form the conclusions and some of the reasons of the court in that case.
These questions cannot be regarded as any longer open to discussion in this court. They have been settled by a superior tribunal, and must form the rule .of action for us. It would be fruitless—perhaps indecorous—to examine at length the reasons upon which they are founded. It is sufficient to say that the questions are learnedly and ably discussed, and that the conclusions arrived at commanded the concurrence of all the judges who took part in the decision of the case.
2. It is urged that the defendant Haney Davis was entitled [467]*467to judgment, and not liable to the plaintiff, not being an assignee of the lessee.
But the uncontradicted proof is of a joint occupancy by the defendants, and an acknowledgment by both that they occupied under the lease. This is sufficient prima facie evidence that they held as assignees. (Quackenboss v. Clarke, 12 Wend. 555. Acker v. Witherell, 4 Hill, 112. Lush v. Druse, 4 Wend. 318. Armstrong v. Wheeler, 9 Cowen, 88.)
3. It is objected that the rents are not apportionable, being a rent charge, and that therefore the plaintiff cannot recover. The court of appeals has decided, in the very recent case of Van Rensselaer v. Chadwick, (MS. September Term 1860,) that as a general rule rent charges are not apportionable. But that case also recognizes a well established exception to the general rule, to wit, that when ■ the division of the land into parcels occurs by operation of law, and not by the act or release of the parties, an apportionment takes place. It is not unfair to conclude in this case that the portion' of land occupied by the defendants in this case devolved upon them by the death of Robert Davis, the father of Asa 0. Davis, and the proprietor of the entire tract, or of that portion occupied by the defendants as their proper proportion of the estate of the deceased. But assume that an apportionment cannot legally be made, does it prevent the plaintiff’s recovery ; or would not the consequence rather be in the present state of the proof, that the defendants would be liable for the whole rent ? The evidence does not show who the other owners, if any, are; and there is therefore no reason for dismissing the complaint upon that ground. And it certainly is not apparent why the defendants are not liable for the rent—at least in part—and if not capable of division, then for the whole. In the case of Van Rensselaer v. Hays, (19 N. Y. Rep. 68, 99) the defendant was held liable as assignee of a part of the premises; although this question of apportionment was not discussed in the opinion of the court and possibly may not have been presented on the points. [468]*468The general doctrine that rents in similar leases are apportionable has been held in several adjudicated cases. (Van Rensselaer v. Bradley, 3 Denio, 140. Van Rensselaer v. Gallup, 5 id, 454. Van Renssslaer v. Chadwiclc, 24 Barb. 334. Astor v. Miller, 2 Paige, 78. Van Rensselaer v. Jones, Id. 643.)
4. The effect of the act of 1860 (Laws of 1860, ch. 396) upon the right to bring the action remains to be considered. The utmost effect of that act is to limit the application of the act of 1805 to deeds executed between 1805 and 1860. 1 have discussed its bearing and operation upon these grants or leases in fee in the case of Main v. Green, and the remarks there made are applicable to this case. I endeavored among other things to show, independent of the phraseology of the act, which left it doubtful whether it was applicable to grants or leases in fee reserving rents, that it was not probable that the legislature designed the act to apply to rights acquired and vested before its passage; and if the court of appeals is right in supposing that the legislature by the act of 1805 virtually established a reversion as the interest of. the grantor in a grant in fee reserving rent, (p. 83), and a privity of contract between those holding a derivative title under both grantors and grantees, (p. 92,) I apprehend it was impossible for the legislature, by what they have done in the act of 1860, to overthrow that relation, or the rights which have grown up under it; especially in cases like this, where suits were commenced before the passage of the act. (Palmer v. Conly, 4 Denio, 374; S. C. 2 Comst. 182. Bradstreet v. Clarke, 4 Wend. 211. Aymer v. Gault, 2 Paige, 284.) At least it is so improbable that they intended to do so that we are bound to assume the contrary, until more explicit evidence of such intent is supplied. (Jarvis v. Jarvis, 3 Edw. 462. Wadsworth v. Thomas, 7 Barb. 445. Salters v. Tobias, 3 Paige, 338. Berley v. Rampacher, 5 Duer, 183. Wood v. Oakley, 11 Paige, 400. Johnson v. Burrell, 2 Hill, 238.) However that may be, I do not see that the [469]*469plaintiff is dependent upon the act of 1805 or its subsequent re-enactments, for the maintenance of the action. The case of Van Rensselaer v. Hays, before cited, holds, that at all events the parties bound to pay the rents were liable, independently of the statute, to an action at the suit of the original grantor and his heirs; that in equity they were transferable, and transferred to the subsequent owners of the rents, and that the code of procedure by abolishing the distinction between legal and equitable remedies and requiring all actions to be brought in the name of the real party in interest, conferred upon the plaintiff the necessary legal capacity to institute the action. (19 N. Y. Rep. 85.)
[Albany General Term,
September 3, 1860.
Gould, Hogeboom and Peckham, Justices.]
The course of legal adjudication seems to have left no ground upon which the defendant can securely stand, and the result is that the judgment of the circuit court must be affirmed.
Ante, p. 448.