The opinion of the Court was delivered by
GrlBSON, C. J.
This is, in one respect, a more obvious case of apportionment than was Ingersoll v. Sergeant. There the act of apportionment was done without the concurrence of the tenant; and had the statute of quia emptores been in force here, as it was strangely enough supposed to be till after the second argument, I am unable to see how the necessary consequences of releasing, by *act of the party, parcel of an estate burthened with a could have been avoided. In a rent reserved with a clause of distress in a conveyance in fee— in a word, a feefarm rent — is turned into a rent charge by force of that statute, which, abolishing intermediate tenure while the reservation severs the rent from the indispensable incident fealty, throws the landlord’s right exclusively on the clause of distress, as in the case of a rent 'granted and charged by such a clause on the grantor’s land, which is a rent charge proper. But though an extinction of the common law right of distress, reduces rent-service to rent-charge, a clause of distress added to it is inoperative, and productive of no such consequence, because, being against common right, it is less favoured, and accounted less *365worthy. (Vide, note to Bradbury v. Wright, Doug. 605.) There was in that case, therefore, a rent-service and not a rent-charge; a conviction of which, brought me to concur in the judgment. I take it a rent-charge can be created in Pennsylvania, only by granting an annual sum out of land charged with a clause of distress; which is the rent-charge of the common law. In the case at bar, not only is the rent feefarm, but the suspension of a part of it has been induced by an act of the law. The bill charges that a part of the promises has been taken for public use, by the opening of a street, pursuant to an order of the Quarter Sessions, and that compensation for it has been awarded respectively, to the landlord and the tenant; but as it is conceded that the residue of the ground would be sufficient for the entire rent, a doubt has been suggested whether the tenant ought not to take the landlord’s compensation, and suffer him to dis-train for the whole. More than a doubt of it, was certainly entertained in Jew v. Thirkwell, (Ca. in Ch. 31,) where the chancellor refused to apportion, because the land was still worth more than the rent, notwithstanding a recovery of common in it, which was the foundation of the bill; yet on principles of general equity, there is no apparent reason why a common loss should be borne by the tenant alone. Even the common law, which for part eviction suspends a proportionate part of the rent without regard to the capacity of the residue to bear the whole, deals with the subject more equitably by proportioning the rent to the enjoyment which is the consideration of it. That case, however, seems to be distinguishable from the present. There, as profits still continued to be drawn from every part of the land, the rent might continue to issue from every part of it; but might it, in contemplation of equity, do so here ? As we determined in Warner v. Caulk, (ante, 193,) and as all the old books have it, rent is an incident of the enjoyment; but there can be no private enjoyment of ground taken for a public street, though the right to the soil be not divested, and the occupancy of the public might therefore be considered an equitable disseisin. Still the difference betwixt it and a of is in the degree; and I am unable to *discover a ground on which Jew v. Thirkwell, could be sustained. In portion as the enjoyment is curtailed without the tenant’s default, so is the rent to be; and as by the contract, which could bo remodelled only by common consent, every part of the rent is to issue out of every part of the ground, the landlord could not concentrate the whole of it in a particular part; and how can we treat the subject as if he might ? It may be said that as the tenant would get the whole compensation, it would be more equitable to charge the residue of the enjoyment with *366the entire rent than it was in Jew v. Thirkwell, where he bore the loss and got nothing. By the contract, however, the consideration of the rent is not to be money, but land, for which the tenant is not bound to accept an equivalent. Besides, on what principle he could be compelled to receive compensation awarded to another, and that too as a consideration for granting a new estate of the same nature, I cannot imagine. All the authorities from the 46 Ed. 3, 32, to the most modern, agree that a rent extinguished in part of the land, can be thrown entire on the residue only by what is in substance a fresh grant; and we cannot treat the complainant as if it might be exacted.
That the present is a case for relief here, is irrefragable. Equitable jurisdiction of apportionment springs from defectiveness, or want of a remedy at law; and I take it, the case at bar is in the latter category. An easement gained by the public, leaves the legal seisin undisturbed; consequently, when there is a Court of Chancery, apportionment for it cannot be made in replevin, unless perhaps where the demise is by parol. Failure of consideration under a reservation by deed, was relieved against by a common law court, in Jairman v. Fluck, (5 Watts, 516" court="Pa." date_filed="1836-10-15" href="https://app.midpage.ai/document/fairman-v-fluck-6311672?utm_source=webapp" opinion_id="6311672">5 Watts, 516,) and Warner v. Caulk, only because there was no separate forum of equitable administration from which relief might be had. Even in Jew v. Thirkwell, it would have been given in equity for want of eviction to make a case at law, had not the chancellor believed it to be unattainable any where. That case, so far as regards jurisdiction — and that was not contested — is in principle the present; for the title to land over which there is a highway, remains in the original owner as strictly as it does when a right of common in ic has been recovered ; and if there be no eviction to work a suspension at law, it' is certain that, as there is no equitable plea to an avowry, the tenant cannot have remedy for an equitable eviction by replevin. But an action at law, were it maintainable, would be fraught with those difficulties from multiplicity of interests, which first gave equitable jurisdiction in contribution; and these can be avoided only by calling in all the parties and making apportionment in a single suit so as to bind them all. But the proportions are to be settled by a jury.
*The following decree was made.
February 17th 1838. This cause having been heard on answer, it is ordered and decreed, complainants are entitled to have an apportionment made of the ground-rent mentioned in the said bill, according to the prayer of the said bill, and that so much thereof ought to be extinguished as shall be in just proportion to that part of the lot of ground *367therein mentioned which is taken for public use by the opening of Lombard street; and it is ordered, that the parties do proceed to a trial at law at the next Nisi Prius to be held for the City and County of Philadelphia, upon the following issue, viz. How much of the ground rent of $106 66 per annum, mentioned in the said bill and answer, has been discharged by the opening of Lombard street, and what proportion of the same ought to remain and be charged upon that part of the original lot which will remain after the opening of Lombard street. And the complainant here is to be plaintiff at law, and the parties are forthwith to prepare the pleadings, and the cause is to be put on the trial list of the second period: and it is hereby referred to James S. Smith, Esquire, as master, to settle the said issue, in case the parties differ about the same. And it is further ordered, that all books, papers, and writings in the custody or powrer of any of the parties, relating to the matters in question, that shall be called for by the other party, be produced at the trial: and the Court reserves the consideration of costs and of all further directions until after the said trial shall be had, &c.
Cited by Counsel, 9 Watts, 153 ; 7 Barr, 193.
Cited by the Court, 10 Harris, 150.
Explained, 6 C. 371; 2 Grant, 245" court="Pa." date_filed="1858-11-19" href="https://app.midpage.ai/document/oconnor-v-oconnor-6315222?utm_source=webapp" opinion_id="6315222">2 Grant, 245.
See also, 4 Wharton, 90.