# Kunckle v. Wynick

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KUNCKLE verƒus WYNICK.
C
1788.
‘‘ in the Northern Liberties of the city of Philadelphia, referving a
‘‘ Rent-charge of 40 dollars per Ann. payable on the 1ft day of Octo-
‘‘ ber annually. Before any rent was due, Nicholas Wymick, on the
‘‘ 15th of July, 1785, affigned and conveyed all his intereft in the
‘‘ Premiffes to Henry Moyers. The Plaintiff accepted one years
‘‘ rent of the Affignee. The queftion is, whether he can recover in
‘‘ the prefent action, which is for one year's rent accruing fub
‘‘ fequent to that paid? ’’
The conveyance from Kunckle to Wynick contained the following claufe :– ‘‘ And the faid Nicholas Wynick for himfelf, his heirs, exe-
‘‘cutors and adminiftrators, doth hereby covenant, promife, and
‘‘ agree, to and with the faid John Kunckle, his heirs, and affigns,
‘‘that he, the faid Nicholas Wynick his heirs, or aʃʃigns fhall and
‘‘ will at his and their own expence, within one year from the date
‘‘ hereof, erect, build, and finifh, on the hereby granted lot, one
‘‘ good fubftantial dwelling houfe, at leaft 16 fect fquare and 2 ftories
‘‘ high, with a cellar under the fame walled up with brick or ftone ;
‘‘ and ʃhall and will from time to time and at all times hereafter for-
‘‘ ever, well and truly pay, or caufe to be paid, unto the faid John
‘‘ Kunckle, his heirs, or affigns, the aforefaid yearly rent or fum of
‘‘ 40 dollars, &c.’’
Rawle, for the Defendant, make two points : 1 ft, Whether the fentences in the claufe above ftated from the deed, could be fo coupled and interwoven, as to create an exprefs covenant, on the part of the Grantor, that his aʃʃigns fhould pay the rent-charge ? and, 2dly, Whether acceptance of rent from the Affignee, was not a bar of the Plaintiff's demand of the rent from the Affignor?
I. On the firʃt point he endeavoured to conftrue the Covenant, fo as to extend it to the Aʃʃigns of Wynick only in the cafe of building the dwelling-houfe, and not in the cafe of paying the rent. But he did not feem to expect much fuccefs from this difcrimination.
2. On the ʃecond point, he argued, that this was a rent iffuing out of the land, which the Plaintiff had elected to purfue by his acceptance of rent from the Affignee ; and that this acceptance was a bar to his demand againft the Defendant. Cro. J. 522.3. Rep. 22.2 Bulʃts. 152. He admitted, that 3 Lev. 233. Sound. 240. S.C. appeared to be ftrong againft him ; but, contended, that, in truth, they ought not to have any weight with the Court, fince the prefent queftion was not immediately in agitation in thofe cafes, and, confequently, what has not been exprefsly adjudged, cannot be fet up as an authority. As 1 Bac. Abr. 536. is founded on 3 Lev. 233. it muft neceffarily follow the fate of its principal. With refpect to Keb. 640, he prefumed that the Reporter had been guilty of fome miftake, and queftioned whether his doctrine had been received even in England.
But he urged that whatever might be the practice there, the laws and circumftances of Pennʃylvania had rendered a different one neceffary here; for the Acts of Affembly altering the common law, carried with them many confequences, which were not exprefsly provided for in the acts themfelves; as in the cafe of real eʃtates made ​
1788.
fubject to executions for debt, and in the cafe of a Devaʃtavit committed by an Adminiftrator. He infifted that the policy of the laws of this State was to facilitate the transfer of lands, in contradiction to the genius of the common law ; that, therefore, it might be incumbent upon the Engliʃh Courts to enforce with the greateft ftrictnefs the exprefs covenants in a conveyance; but that our Courts ought rather to conftrue them liberally, fo as to prevent unneceffary embarrafsments in the change of property. If, then, the Defendant is liable for the laft year's rent, he muft be liable, by the fame rule, for the rent of 40 years ftanding ;and thus, as the Grantor of a rent-charge can never be exonerated, or even fate in the difpofal of the eftate from which it iffues, the reftraints on fales and transferrs will become daily more numerous, and more injurious to the public welfare.
Millegan, for the Plaintiff, obferved, that as the firʃt point was a matter of mere conftruction, he fhould leave it implicitly to the Court.
With refpect to the ʃecond point, he contended, that the difficulty had arifen from not diftinguifhing properly between actions of debt and actions of covenant : For, he granted, that an action of debt would not lie in this cafe ; as it requires privity of eftate to fupport it ; but that the action of covenant required only privity of contract, and , therefore, would well lie againft the Grantor of the rent-charge, after his affignment. In fupport of this diftinction he cited 1 Roll. Abr. 522. Cro. C. 580. 1 Sound. 240. 2 Keb. 640. 1 Bac. Abr. 536. tit. Covenant. Cro. J. 309. Sid. 402.
SHIPPEN, Preʃident.–The queftion in this cafe is, whether on a Ground Rent Deed, wherein there is an exprefs covenant on the part of the Leffee for payment of the rent, and he affigns over the premiffes, and the Leffor accpets rent from the Affignee, an action of covenant will lie for the Leffor againft the Lefffee for the fubfequent rent.
The diftinction between actions of debt and actions of Covenant in this cafe, is too well eftablifhed to be now unfettled. The action of debt lies upon the privity of Eʃtate, which is utterly extinguifhed between the Leffor and Leffee by the Leffor's acceptance of rent from the Affignee. The action of covenant, when founded upon an expreʃs covenant, lies not upon the privity of the Eʃtate, but privity of contract, which cannot be the affignement of the premifes, or by any act of the Leffee, or by acceptance of the rent, be transferred from him. The covenant, however, muft be an exprefs covenant, not as implied one, or a covenant arifing by operation of law, as by the words “yielding and paying” &c. in the deed.
The cafes in the books upon this point are generally of actions of covenant for not making repairs ; and a diftinction has been attempted to be made between thofe and actions for the Rent: in the latter cafe it is faid, that the land being thefund out of which the rent is to iffue, and that being tranferred, the Leffor's acceptance of ​
1788.
rent from the Affignee will take away all remedy againft the Leffee himfelf. I have looked for this diftinction in he books, but cannot find it in any cafe where there was an exprefs covenant for the payment of the rent. The cafes found the law upon the perfonality of the contract ; which extends equally to the payment of the rent, as to the making repairs; and, though the authorities are not fo numerous in the one cafe as the other, yet they are as expreʃs. 2 Keb. 640. and 2 Barnard 372. are full to the point. If thefe books are thought to be of doubtful authority, 1 Roll. Ab. 522. cities two cafes, where the breach of covenants was for non payment oƒ the vent. In 1 Sid. 402. where the Court draws the diftinction between debt and covenant, they exprefsly mention the action to be for the rent ; and the cafe in 3 Lev. 283. is likewife covenant for non payment of the rent.
As to the argument ab inconvenenti, I cannot fee how it operates more in this country than in England. It Leffees mean not to be perfonally bound after affignment, they fhould take care what covenants they enter into. If they will, in exprefs words, covenant for the payment of the rent, they muft be bound by it.
Judgment for the Plaintiff.