4 Denio 405 | N.Y. Sup. Ct. | 1847
The principal inquiry in this case is, whether the rent reserved to the plaintiff in the lease to Yale was bound by the judgments subsequently recovered against the plaintiff. To resolve this it becomes necessary to determine whether the rent was an estate in lands, tenements or real estate, within the meaning of the former statute which was in force at .that time. (1 R. L. 500, § 1.) That statute provided for a lien upon property under that description only, and no lien existed at common law.
In the case of The People v. Haskins, (7 Wend. 463,) this court held that a rent reserved upon a lease in fee containing a clause of distress and of re-entry, was an interest in land which was bound by a judgment; and that it might be sold on execution as real estate.
Rents by the common law might be created either by reservation, by limitation, of use, or by grant. When a rent is granted, the rent itself is the subject of the grant; but when it is reserved out of lands, the land is the subject granted, and the rent comes in lieu of the land. (3 Preston on Abstracts, 54.) Lands were not originally liable to execution at the suit of a subject, except in judgments against heirs on the bond of their ancestor. (3 Rep. 12.) At common law the conusee of a recognizance, or the plaintiff who had recovered judgment for debt or damages was entitled only to two writs of execution. One a writ of levari facias, by which the sheriff might levy the com and other present profit which grew upon the land, and the rents payable by the tenants and the beasts levant and conchant upon the land, because in all cases of levari facias the land was considered as the debtor; (Skinner’s Rep. 619; Plowd. Rep. 441;) and the other a writ of fieri facias, by which the sheriff was to seize the goods and chattels in execution. In addition to these, in actions of trespass vi et armis, the law allowed a writ of capias ad satisfa•
Although the statute of Westminster 2d, first subjected land to execution on a judgment or recognizance at common law, yet by other statutes lands were subjected to the satisfaction of certain securities created by them, such as statutes merchant, statutes staple, and recognizances in the nature of a statute staple. In the exposition of these statutes it has been held that an estate in fee simple in possession may be extended on a statute or recognizance, or taken by writ of elegit, as'also all estates in reversion expectant on leases for lives or years. And in the case of an elegit the plaintiff shall have a moiety of the reversion and a moiety of the rent. (2 Cruise’s Dig. tit. 14, Estate by Statute Merchant, &c. § 58; Campbell’s case, 1 Roll. Abr. 894.) The same principle was affirmed in Littington’s case, (7 Coke, 38.)
It was by an application of the principle of these authorities that the court in The People v. Haskins held, that tinder our statute a rent reserved upon a lease in fee with the right of reentry and distress, was bound by a judgment and might be sold on execution as real estate. From the best consideration I have been able to give the question, I have come to the conclusion that the case cannot be sustained. It cannot be doubted that an assignment or transfer of the reversion carries with it the right to demand and receive the rent which shall become payable afterwards, unless the rent be expressly reserved. Littleton says that by a grant of the reversion the rent passeth. (§ 228.) And the commentary by Lord Coke, states that “ the reason thereof is because the rent is incident to the reversion, and passeth away by the grant of the reversion, as with the superior, without saying cum pertenentiis.” (1 Inst. 151, b;
A reversion is a vested interest or estate, inasmuch as the person entitled to it has a fixed right of future enjoyment. In order to acquire a title to rent through a sale on execution, the purchaser must make title to a vested estate in the land out of which it issues. That he may do on the sale and purchase of the land held under a lease or grant for life or years, subject to the payment of such rent. There is no mode, known to our law, to transfer a right to accruing rent reserved on such lease, by sale under an execution, irrespective of a sale of the demised premises. On such sale on execution against the reversioner owning the rent, it passes as an incident to the land, or as a part of it.
Prior to the recovery of the judgments against the plaintiff, he had conveyed the premises to Yale in fee, reserving a rent, with the right of distress in case of non-payment; and for want of a sufficient distress to satisfy the rent, a further reservation of a right to him, his heirs and assigns, to re-enter upon the premises and again to repossess and enjoy the same as of his former estate. Upon such re-entry the grant was to cease. The grant to Yale being in fee, passed the whole estate which the plaintiff had, subject only to be defeated by a subsequent breach of the condition to pay the rent, and by a re-entry for such breach. Upon the happening of a breach and on a reentry by the plaintiff the estate was to become void ah initio, and the plaintiff would become seized of his original estate in
At the time of the sale no breach had occurred, and no reentry had taken place. The interest of the plaintiff in the land itself was therefore but a mere possibility of an estate. That interest, in my opinion, is neither u lands, tenements or real estate,” within the meaning of our statute. (4 Kent's Comm. 120 to 125; Shep. Touch. 153; Springstein v. Schermerhorn, 12 John. 361.) A lien by judgment therefore could not attach to it, and of course it was not the subject of sale or capable of being conveyed by the sheriff under an execution. The defendant does not claim that Huntington acquired this possibility of reverter, as it is sometimes called in the books, by ■ his purchase at the sheriff’s sale; but he insists that the formal sale and purchase of the land—the corporeal body, out of which the rent issues—passed the title to the rent as land, though the purchaser did not acquire thereby any title to the land itself. It is very clear, as I think it has already been shown, that to enable a rent to pass by a sale on execution of the land cut of which it issues, the defendant must have a vested estate in reversion in the thing corporeal, which thing passes to the purchaser. The rent then also passes as an incident thereto, but not as land. Rent is a species of incorporeal hereditament. It is defined to be a certain profit issuing yearly out of lands and tenements corporeal. It issues out of the thing granted, and is. no part of the thing or land itself. (2 Black. Comm. 19, 41.) It is collateral to a corporeal hereditament, and a right unconnected with and independent of the possession or ■ enjoyment of any real or corporeal property. (1 Chitty's Gen. Pr. 206.)
Although it may be that in a strict legal sense the terms “ lands, tenements and real estate,” or one of them, may comprehend every thing of a- permanent n ature that may be holden, and may thus embrace rents, still it seems to me that in the statute concerning judgments and executions, to which I have referred, the legislature used those terms in their popular and usual signification, to denote real property corporeal. The
The sheriff in this case advertised and sold all the estate, right, title and interest of the plaintiff, whereof he was seized or possessed on the day the judgment was docketed, or at any time afterwards, of, in and to a certain parcel of land, which is particularly described by naming the adjoining property, and is said to contain about two hundred acres. It is shown that the plaintiff was not on that day or at any time afterwards either seized or possessed of the one and an half acres of land in controversy. He had several years before sold and conveyed it to Yale in fee, reserving, it is true, a certain rent, with the right ui distress and of re-entry. He had therefore no vested estate, right or interest in the land, or thing remaining on which the lien by judgment could attach. His interest was merely an incorporeal hereditament. And besides, it is not, as has been observed, now claimed that the title to the one and an half acres of land was acquired by the sale or that it passed by the deed of the sheriff. The position is that the plaintiff’s title or interest to the rent was sold, and that it passed to the purchaser or the redeeming creditor by the deed professing to convey the land, although no such interest was indicated in the notice of sale or in the conveyance. To allow such an effect to be given to such proceedings would, in my opinion, be intolerable. But my conclusions are, first, that rent reserved on a lease in fee is neither lands, tenements or real estate, within the meaning of the statute authorizing the sale of lands on execution, although in England it is extendible on the writ of elegit; and second, if it was an interest subject to the lien by judgment and sale under execution, it was not, in this instance, sold or conveyed in such a manner as to pass any interest to the pur
New trial granted.