By the Court, Harris, J.
There can be no doubt, I think, that the rent reserved in the manor leases which exist in this state, is a rent charge. The dictum to the contrary, in Van Rensselaer v. Bradley, (3 Denio, 135,) is not sustained by [336]*336authority. In Coke Litt. s 217, it is said that “ if a man make a feoffment in fee, and by the same indenture reserveth to himself and his heirs a certain rent, with power of distress, such a rent is a rent charge, because such lands and tenements are charged with such distress by force of the writing only, and not of common right.” The rent reserved upon a grant in fee is in the nature of a new purchase from the grantee. Bacon’s Abr. tit. Rent, H.)
The doctrine of the common law in relation to the discharge of a rent charge, as it is laid down by Littleton, § 222, is that if a man has a rent charge issuing out of certain lands and he purchases any part of the land, the rent charge is extinct. The reason for this rule, as given by Lord Coke, is, that the rent is entire, and against common right, and issuing out of every part of the land, and therefore by purchase of part it is extinct in the whole. So also, if a person having a rent charge issuing out of three acres of land, releases all his right in one acre, the rent is extinct, because all issues out of every part, and it cannot be apportioned. (18 Vin. Abr. 505.)
The common mode, says Cruise,. when a person entitled to a rent charge is disposed to exonerate a part of the lands from the payment of rent, without risking its entire extinguishment, has been for the grantee of the rent charged to join in the conveyance of the land, which operates as a release of the land conveyed, and to insert a proviso in the deed that the other lands shall continue subject to the rent. (See 3 Cruise, 318.)
It would still be necessary to adopt some such mode of proceeding where it was sought to exonerate a part of the land charged with the rent, and hold the residue for the payment of the whole. But it has never been supposed that, where tenants in common of lands chargeable with rent, have made partition between themselves, each assuming the payment of his proportionate share of rent, any such precaution was necessary. “ If coparceners make partition,” says Perkins, “the rent shall be taken by equity, so that in that case, the rent shall be apportioned.” (Perkins on Conveyancing, § 677.). After such a partition, a discharge of one portion of the land from the rent could only [337]*337operate to the advantage of the other portion. It might happen, without such a discharge, that the land of one coparcener might be charged with the payment of all the rent; but, after such a discharge, it could only be charged with such proportion of the rent as the tenants themselves had agreed upon, as its just share.
In this case, the lands charged with the payment of the rents reserved in the original leases had descended to the defendant and his brother. They had made partition between themselves. Each had conveyed to the other, and each had taken his share subject to the claim of the plaintiff, by which I understand that it was agreed between them that each should assume and pay his equitable proportion of the rents reserved upon the lands of both. The land of either would still be liable for all the rent, but, as between themselves, each would be liable to the other for any amount he should be compelled to pay beyond his proper share. A partition having thus been made, and the rent having been apportioned between the several owners of the land, the plaintiff, by the execution of the release to John Chadwick, made himself a party to the partition and became bound by the apportionment that had been made. He could no longer claim from the defendant the payment of any greater amount of rent than by the contract for partition between him and his brother he had agreed to pay. There can be no rule of law which will give to such a transaction the effect of exonerating the defendant or his land from the payment of the rent claimed.
The question in this case is quite analogous to that decided in Ingersoll v. Sergeant, (1 Whart. 337.) In that case, a lot of ground in the city of Philadelphia had been conveyed in fee, the grantor reserving to himself and his heirs an annual rent of $351. Ingersoll, the plaintiff, had, through sundry intermediate conveyances, become the owner of the lot charged with the rent. On the 80 th of April, 1819, Ingersoll conveyed a part of the lot to Jonathan Smith. In the deed there was no condition that Smith, the grantee, should assume or pay any part of the rent. Sergeant, who had become the assignee of the rent, subsequently to the conveyance from Ingersoll to Smith, re[338]*338leased to Smith his part of the lot. After the execution of this release, Sergeant, the owner of the rent, assigned it to Mrs. Sergeant, the defendant, and she distrained upon Ingersoll’s part of the lot for the whole rent. Ingersoll brought replevin, and the defendant avowed for rent in arrear. The question thus raised was, whether the release to Smith operated as an extinguishment of the whole rent. The ease was twice argued by the most distinguished counsel at the .Philadelphia bar, and it was held, after a most elaborate examination by the court, that the release had the effect to extinguish only so much of the rent as should be in proportion to the comparative value of the land bought of the plaintiff by Smith.
It will be perceived, upon a comparison of the facts in the case with those of the case under consideration, that, while in the latter ease the several owners of the land charged with the rent had agreed between themselves that each should pay his just share of the rent, in the former Ingersoll had conveyed to Smith, with covenants of warranty, and without any agreement on the part of Smith that his part of the lot should be chargeable with any part of the rent. This element, in the present case, so far as it affects the question at all, is obviously in favor of the position assumed by the plaintiff’s counsel. There had been not only a partition of the land between the owners, but they had so far as they were able to do it, severed the rent chargeable upon their land. The plaintiff but ratified their own contract when he assumed to deal with one of them in respect, to his share of the rent without regard to the other.
Farley v, Craig, (6 Halstead, 262,) involved a similar question. That was ejectment for the non-payment of rent. One Logan had granted a tract of land containing 382 acres, to Joseph Smith, reserving certain rents : after the death of Smith, the first tenant, 200 acres of the land came to the father of the defendant, who paid rent thereon. After his death, the 200 acres was divided between his two sons, who took their respective shares in severalty, and each paid to the plaintiff,.for several years, the half of their father’s rent. The action was against one of the sons, for the non-payment of the rent upon [339]*339his share of .the 200 acres. The court was divided in opinion upon the plaintiff’s right of re-entry depending on the provisions in the original conveyance, but both the judges who delivered opinions in the case, agreed that the plaintiff showed a right to the rent apportioned upon the defendant’s share of the 200 acres. “Rent charges,” said Drake, J., “may be apportioned by contract or by descent. They may be divided by assignment or by the act of law.
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By the Court, Harris, J.
There can be no doubt, I think, that the rent reserved in the manor leases which exist in this state, is a rent charge. The dictum to the contrary, in Van Rensselaer v. Bradley, (3 Denio, 135,) is not sustained by [336]*336authority. In Coke Litt. s 217, it is said that “ if a man make a feoffment in fee, and by the same indenture reserveth to himself and his heirs a certain rent, with power of distress, such a rent is a rent charge, because such lands and tenements are charged with such distress by force of the writing only, and not of common right.” The rent reserved upon a grant in fee is in the nature of a new purchase from the grantee. Bacon’s Abr. tit. Rent, H.)
The doctrine of the common law in relation to the discharge of a rent charge, as it is laid down by Littleton, § 222, is that if a man has a rent charge issuing out of certain lands and he purchases any part of the land, the rent charge is extinct. The reason for this rule, as given by Lord Coke, is, that the rent is entire, and against common right, and issuing out of every part of the land, and therefore by purchase of part it is extinct in the whole. So also, if a person having a rent charge issuing out of three acres of land, releases all his right in one acre, the rent is extinct, because all issues out of every part, and it cannot be apportioned. (18 Vin. Abr. 505.)
The common mode, says Cruise,. when a person entitled to a rent charge is disposed to exonerate a part of the lands from the payment of rent, without risking its entire extinguishment, has been for the grantee of the rent charged to join in the conveyance of the land, which operates as a release of the land conveyed, and to insert a proviso in the deed that the other lands shall continue subject to the rent. (See 3 Cruise, 318.)
It would still be necessary to adopt some such mode of proceeding where it was sought to exonerate a part of the land charged with the rent, and hold the residue for the payment of the whole. But it has never been supposed that, where tenants in common of lands chargeable with rent, have made partition between themselves, each assuming the payment of his proportionate share of rent, any such precaution was necessary. “ If coparceners make partition,” says Perkins, “the rent shall be taken by equity, so that in that case, the rent shall be apportioned.” (Perkins on Conveyancing, § 677.). After such a partition, a discharge of one portion of the land from the rent could only [337]*337operate to the advantage of the other portion. It might happen, without such a discharge, that the land of one coparcener might be charged with the payment of all the rent; but, after such a discharge, it could only be charged with such proportion of the rent as the tenants themselves had agreed upon, as its just share.
In this case, the lands charged with the payment of the rents reserved in the original leases had descended to the defendant and his brother. They had made partition between themselves. Each had conveyed to the other, and each had taken his share subject to the claim of the plaintiff, by which I understand that it was agreed between them that each should assume and pay his equitable proportion of the rents reserved upon the lands of both. The land of either would still be liable for all the rent, but, as between themselves, each would be liable to the other for any amount he should be compelled to pay beyond his proper share. A partition having thus been made, and the rent having been apportioned between the several owners of the land, the plaintiff, by the execution of the release to John Chadwick, made himself a party to the partition and became bound by the apportionment that had been made. He could no longer claim from the defendant the payment of any greater amount of rent than by the contract for partition between him and his brother he had agreed to pay. There can be no rule of law which will give to such a transaction the effect of exonerating the defendant or his land from the payment of the rent claimed.
The question in this case is quite analogous to that decided in Ingersoll v. Sergeant, (1 Whart. 337.) In that case, a lot of ground in the city of Philadelphia had been conveyed in fee, the grantor reserving to himself and his heirs an annual rent of $351. Ingersoll, the plaintiff, had, through sundry intermediate conveyances, become the owner of the lot charged with the rent. On the 80 th of April, 1819, Ingersoll conveyed a part of the lot to Jonathan Smith. In the deed there was no condition that Smith, the grantee, should assume or pay any part of the rent. Sergeant, who had become the assignee of the rent, subsequently to the conveyance from Ingersoll to Smith, re[338]*338leased to Smith his part of the lot. After the execution of this release, Sergeant, the owner of the rent, assigned it to Mrs. Sergeant, the defendant, and she distrained upon Ingersoll’s part of the lot for the whole rent. Ingersoll brought replevin, and the defendant avowed for rent in arrear. The question thus raised was, whether the release to Smith operated as an extinguishment of the whole rent. The ease was twice argued by the most distinguished counsel at the .Philadelphia bar, and it was held, after a most elaborate examination by the court, that the release had the effect to extinguish only so much of the rent as should be in proportion to the comparative value of the land bought of the plaintiff by Smith.
It will be perceived, upon a comparison of the facts in the case with those of the case under consideration, that, while in the latter ease the several owners of the land charged with the rent had agreed between themselves that each should pay his just share of the rent, in the former Ingersoll had conveyed to Smith, with covenants of warranty, and without any agreement on the part of Smith that his part of the lot should be chargeable with any part of the rent. This element, in the present case, so far as it affects the question at all, is obviously in favor of the position assumed by the plaintiff’s counsel. There had been not only a partition of the land between the owners, but they had so far as they were able to do it, severed the rent chargeable upon their land. The plaintiff but ratified their own contract when he assumed to deal with one of them in respect, to his share of the rent without regard to the other.
Farley v, Craig, (6 Halstead, 262,) involved a similar question. That was ejectment for the non-payment of rent. One Logan had granted a tract of land containing 382 acres, to Joseph Smith, reserving certain rents : after the death of Smith, the first tenant, 200 acres of the land came to the father of the defendant, who paid rent thereon. After his death, the 200 acres was divided between his two sons, who took their respective shares in severalty, and each paid to the plaintiff,.for several years, the half of their father’s rent. The action was against one of the sons, for the non-payment of the rent upon [339]*339his share of .the 200 acres. The court was divided in opinion upon the plaintiff’s right of re-entry depending on the provisions in the original conveyance, but both the judges who delivered opinions in the case, agreed that the plaintiff showed a right to the rent apportioned upon the defendant’s share of the 200 acres. “Rent charges,” said Drake, J., “may be apportioned by contract or by descent. They may be divided by assignment or by the act of law. In this case, we find the father of the defendant, forty years ago, paying a special amount of rent for a part of the lands originally subjected to the rent charge, and it was continued for nearly thirty years by the father, mother and the defendant himself. This is abundant evidence of an apportionment by contract. And when the defendant and his brother divided the" farm, equally, in value, and each, for several years thereafter, paid the half of the rent, it is evidence of the agreement of all the parties thereto, and should not now be disputed.” (See also Van Rensselaer v. Bradley, 3 Denio, 135; Nellis v. Lathrop, 22 Wend. 121.)
It was well said by the plaintiff’s counsel upon the argument, that no case is to be found in which rent, though it be a rent charge, if in its nature it be divisible and apportionable, has been held to have been extinguished as to the tenant of one parcel of the land by a release to another tenant of a different parcel held by him in severalty.
The remaining question in the ease is whether the plaintiff is entitled to recover the $25 proved upon the trial as the estimated value of the defendant’s share of one day’s service with carriage and horses reserved in the leases. It was proved on the trial that the plaintiff had received compensation for one day’s service, and the defendant’s counsel insisted that the reservation in the lease was thereby satisfied. Whether this is so or not, must be determined by a reference to the reservation itself. By its terms, there is reserved to the grantor, &c. “ yearly and every year, the yearly rent of twenty-eight skip-pies of wheat and four fat fowls, and perform one day’s service with carriage and horses, the first payment to be made on the [340]*340first day of January,” &c. I have, in quoting from the instrument, omitted some intermediate language which relates to the place where the wheat and fowls are to he delivered, and which is clearly parenthetical. The rent reserved consists of three things ; the wheat, the fowls, and the day’s service. In respect to the latter, the terms of the reservation are inapt and ungrammatical. The word “ perform” is used as a verb without either a noun or pronoun for a nominative. To give effect to what seems to have been the intention of the parties to the instrument, instead of using the Avord as a' verb, it should have been used in the form of a participle or a noun. The reservation would then read as follows: “ Yielding and paying therefor, yearly and every year, the yearly rent of tAventy-eight skipples of Avheat and four fat fowls, and performing one day’s service,” &c. or, “ yielding and paying &c., the Avheat and foAvls and the performance of one day’s service” &c. I think the fair construction of the whole sentence requires that the words “ yearly and every year,” and the words “ yearly rent” should be made applicable to the performance of the day’s service as well as the other items of the rent; so too, the succeeding provision that the first payment shall be made on the second day of January, next after the execution of the instrument, seems, from the Avhole structure of the sentence, to refer not less to the performance of the day’s service than to the Avheat and the foAvls. This vieAv of the question is strongly supported by the uniform practical construction that this reservation, found in so many of the manor leases, has received for more than half a century. I am of opinion, therefore, that the judgment at the circuit should be affirmed.
[Albany General Term,
May 4, 1854.
Wright, Harris and Watson, Justices.]