of the sale. There were judgments prior to the plaintiff's judgment, but subsequent to the reservation of the rent, sufficient to absorb the fund. The plaintiff claimed priority. The ground rent deed contained the grantee's covenant to pay the rent; a power to enter and distrain, and for the want of sufficient distress to hold the land until the arrearages were fully paid; but no power to enter and hold as of the grantor's former estate. The plaintiff was held entitled to the principal of the arrears, out of the fund, but not to interest-and this in preference to the other claimants.

Against the plaintiff's claim to priority it was argued—First, That by resorting to the personal remedy against the grantee by action of covenant, the land was totally discharged from the rent. And if not so then, secondly, that the remedies given by the deed were not cumulative, but alternative. That the plaintiff might have distrained; or for want of sufficient distress might have entered and held; or he might resort to the person of the grantee. But he could not enter if there was a sufficient distress; nor pursue the covenant to judgment and then distrain for satisfaction. That the lien of the landlord for his arrears is founded exclusively upon his right to distrain and for want of sufficient distress to reenter; that if the right is gone he stands upon the footing of a common creditor; that if the rent is extinguished, the rights of distress and re-entry are extinguished also. And that the rent was extinguished by merger in the judgment, which was to be levied by execution and took its rank among other judgments solely from its date. That interest, at any rate, could not be recovered, first, because rent itself is interest; and secondly, the landlord should have made a demand on the land, and he had the means of preventing delay, and moreover, in this case there was no penalty by which the tenant could forfeit his estate; the rule being that if the tenant forfeits his estate at law, and the landlord exercises his right of entry, the tenant being forced to ask equity, might be laid under terms.

For the plaintiff it was contended that the land itself having been liable in the first instance for the arrears, he was entitled to the same priority out of the proceeds. That the plaintiff had three remedies; distress, entry and covenant, and he might use them all

until he obtained complete satisfaction. That the remedy by distress, or by entry for want of distress, was not affected by the judgment in covenant-the judgment may alter the security, but it was no satisfaction; it was no extinguishment of the original security unless it produce the fruit of a judgment, and the plaintiff's rights were therefore the same as they would have been if he had obtained no judgment himself, but the land had been sold under the judgment of another; in which case there could be no doubt, it was said, his lien would still continue, and he would be entitled to prior satisfaction out of the proceeds. That interest should be allowed because it was due upon all liquidated sums from the instant the principal becomes payable, either as damages for delay, or as compensation for the use.

Chief Justice Tilghman, who delivered the opinion of the Court, laid it down that the action of covenant for arrears of ground rent was not like the writ of annuity, which was a mere personal remedy, and by resorting to which, as in the case of a rent charge, the party made his election to bind the person exclusively, and thus discharged the land from all further liability; but that in the case of covenant for ground rent the land was not discharged. That the remedies were cumulative, and a resort to one did not exclude a resort to the others until satisfaction. That the judgment in covenant, therefore did not extinguish the rent; "but the rent still exists, or in other words, there still exists a debt on account of the arrears of rent;" that the land remained charged with the rent notwithstanding the judgment; and the plaintiff was entitled to receive the arrears out of t e fund, in preference to the other claimants, but without interest.

As we understand the reasoning of this case, it is, in substance, this: The judgment had not destroyed the lien of the arrears of rent this continued to exist, independently of the judgment..

That such is the case is proved by the fact that notwithstanding the judgment, the arrears could be recovered by the other remedies provide by the deed. This independent lien of the rent existing, the plaintiff was entitled by virtue of it, and not by reason of the judgment, to come in upon the fund and receive the amount of his

arrearages, to the exclusion of those whose liens were subsequent to the lien of the arrearages: viewing the case as though the fund in Court had been raised by a sale under the judgment of a stranger.

The Court, attaching no importance to the fact that the fund was the fruit of a sale upon a judgment for arrears of the rent, nor basing the right of the plaintiff to a relation back of the lien of the judgment, and awarding to him the arrears upon that judgment, but simply and exclusively upon the independent lien of the rent. If this is a correct view of the principle upon which this case was decided—and it is to be inferred that the lien of the judgment does not relate back to the creation of the rent-the principle, we submit, is unsound, because if the latter were the case, estates and mortgages coming within the Act of April 6, 1830, 'brought into existence subsequently to the creation of the rent, would not be devested by the sale for arrearages, which is contrary to the well settled law.

As to interest upon the arrears, the Court confined their opinion to the case before them, and thought the plaintiff not entitled, because, in that case, he had resorted to the land only, and the Chief Justice says: "If a man distrain for rent, he must distrain for the precise sum due. He cannot add interest to the arrears. If the plaintiff had entered on the land by virtue of the power in this deed, he could only have held till the arrears were paid. We do not say how the case would be, if the deed gave him power to enter and hold as of his former estate; for, in that case, his former estate in fee, being revested in law, the defendant would be driven to equity for relief, and in equity it might be thought reasonable to relieve on terms of paying interest." And this question is declared open for discussion when it should arise.

Here, interest was denied upon the peculiar covenants of the deed. The only clause which enabled the plaintiff to re-enter and hold the land, determined that holding upon the payment of the arrearages merely. This being all he was entitled to upon re-entry, and he having resorted to the land, he was held entitled only to what he could have obtained by re-entry-intimating that a princi

'Pamp. Laws, 1830, page 293.

ple of equity might have been invoked, and the result might have been different, had the deed contained a clause of re-entry as of the grantor's former estate.

This case is referred to by all the subsequent cases as the leading authority upon this subject, and as settling the right of the owner of the ground-rent to be paid his arrearages out of the fund derived from a judicial sale of the land, and this in preference to lien creditors claiming under liens subsequent in date to the creation of the rent. Upon the argument of this case, however, the manuscript case of Potts vs. Rhoades, decided in the Court of Common Pleas for Philadelphia, by Biddle,, P. J., in which the law was held the same way, was cited by counsel, and referred to in the opinion of the Court as entitled to great weight.

The next case was that of Sands vs. Smith, (3 W. & S. 9,) decided at December Term, 1841. There had been a sale of the land under a mortgage. Subsequently a distress was made upon the land for arrears of rent which had principally accrued prior to the sale, with interest upon the arrearages, and the goods were replevied. The deed contained a covenant by the grantee to pay the rent, and the clause of distress; but gave no right of re-entry either to hold until the arrears were paid, or to hold as of the grantor's former estate. The land was granted in fee, but the rent was reserved for a term of years, to commence after the lapse of seven years from the date of the deed. The cause came before the Court below upon a case stated, and judgment was given for the plaintiff in replevin. This judgment was reversed in the Court above, where it was held that the defendant was at liberty to distrain for the arrears due at the time of the sheriff's sale.

Chief Justice Gibson delivering the opinion of the Court, says he "never understood on what principle of lien the case of Bantleon vs. Smith was decided," but declares it "not to be his purpose to disturb, or cast the least shadow on its authority, or to do more than show that it is not founded in any principle of lien peculiar to the reservation of a ground rent which it is necessary to carry out further than the decisions have already carried it." The Chief Justice then alludes to the case of Nichols vs. Postlethwaite,

(2 Dall. 131,) in which a legacy charged on land was allowed to be taken out of the price of it in the sheriff's hands, and says that this, as well as all others of the same stamp, depend for their authority exclusively on precedent, and their very great convenience, as well as on the policy of giving the sheriff's vendee a clear title, when it is practicable. But that neither policy nor convenience will justify an extension of the principle of them to the price of land which was not liable to be reached for the debt; and that in all of the precedents the money was not only charged, but there was a means of subjecting the land to the payment of it. He then adverts to the fact that in Bantleon vs. Smith, the deed contained a clause of re-entry by which the land itself might have been seized, and the produce of it applied to the payment of the rent; and also that in Nichols vs. Postlethwaite, the land might have been sold on judgment and execution for the legacy, and suggests that it was, perhaps, the difficulty of reaching it in either of those ways, which induced the Courts to apply the proceeds of it when turned into money. He then asks, "Now, what is the remedy by distress-the only one provided in this conveyance?" And he answers, "It is as much a personal one as an action on a covenant in the deed; it is even more so, as the land may be reached by such an action, while it cannot be reached by a distress, which operates merely on chattels found upon it."

It is true that in this case, as stated by Stroud, J. in Western Bank vs. Willitts (2 P. L. J. 46), the rent is reserved for a term of years, but the Court draw no distinction between such a case and an ordinary reservation in fee, and the whole scope of the reasoning treats the rent as an ordinary ground rent; and the case is discussed in reference to the authority of Bantleon vs. Smith.

The case, however, at first sight appears somewhat ambiguous, and this because so much stress seems to be put upon the allegation that there were no means provided by the deed of subjecting the land to payment of the rent. It proceeds upon the assumption that distress was the only remedy provided by the deed for the recovery of the rent; that there was no means thereby given for subjecting the land to the payment of it; that, therefore, there could