nection with the subjects to which they belong; but they did not undertake to proclaim, or even intimate, the absurd proposition, that the rule of law as to conditions of re-entry applies to an assignment, in like manner, as to a lease.

Van Rensselaer v. Slingerland, 26 N. Y. 580, is the next of this class, of cases deserving notice in connection with the subject under review. And we propose here to examine the case no further than is necessary to discover what, if anything, is decided in regard to the operation of conditions of re-entry, when inserted in an assignment of the estate.

It is true that the court, in the case of Van Rensselaer v. Reed, 26 N. Y. 558, decided contemporaneously with the Slingerland case, held that the instrument of conveyance operated as an assignment, and not as a lease; and left neither any reversion nor possibility of reverter in the grantor.-(26 N. Y. 563.) But the opinion bears evidence. that the ideas of the court upon that point were not clear, for, in the same opinion (p. 576), it is expressly declared that : Imany of the cases in our courts, between parties simi

"In

lar situated, they have been spoken of and treated as landlords and tenants; and the decisions in the cases of Van Rensselaer v. Snyder. 13 N. Y. 299, and Van Rensselaer v. Bazz, 19 id. 100, can be sustained on no other ground." Here is a plain concession that a condition of re-entry in a deed of assignment is inoperative.

Again, in the Slingerland case, 26 N. Y. 587, it is said: "The objections that the plaintiff has no reversion, and that condition of re-entry can only operate by putting an end to

an

lav.

estate, and cannot give an estate to a stranger to the title, Would have been no answer to the action even at common It was decided by the unanimous opinion of the judges of the King's Bench, in the case of Jemmot v. Cooly, which three times argued, that the grantee of a rent-charge in without interest in the land beyond that given to him by such grant, could maintain ejectment after default in pay

was

fee,

ment of the rent."

Before any distinct idea can be obtained of the proposition

there stated by the court, it is necessary to become acquainted with the case of Jemmot v. Cooly, upon which the proposition is based.

T. Raymond R. 135, 158.

That case arose upon an agreement made in 1651, and it was, for the first time, cited by the court in the Slingerland case as authority that an action of ejectment could be maintained at common law against the tenant of land, by a party who confessedly had no estate in the land, upon the mere strength of a condition of re-entry. The facts were these: Francis Drake was the tenant in fee of the land in question, and borrowed £6,000 of Ralph Bovey, who had no estate in the land. To secure the loan, Drake granted to Bovey a rent charge of £420 per annum, which was seven per cent. interest on the money loaned. It was further provided in the agreement: "And the said Drake doth covenant and grant to the said Sir Ralph Bovey that if the rent be arrear above twenty days after any day of payment, that then the said Sir Ralph Bovey and his heirs may enter into the lands and receive the profits until he shall be satisfied of the arrears."

The rent was in arrear, and the question was, whether the plaintiff could maintain ejectment in order to gain possession long enough to obtain the amount due from the produce of the land. The action was sustained, but the court were careful to prescribe the character and effect of the judgment, as follows: "Here the thing granted is only a power, and not the term itself, and it is as a distress; but this power produces a real effect. When the grantee hath entered, he hath only a pernancy of the profits, for he cannot cut trees or pull down houses, and if he doth, trespass lies against him, as against one who abuses a distress."

It will not be

It will be readily seen that the case of Jemmot v. Cooly bears no analogy to the case of a party who seeks to defeat the estate of the tenant for condition broken. pretended that the agreement upon which it was founded created the relation of lord and tenant. If so, which was the lord and which the tenant? Drake, the grantor of the rent

charge, and the party of the first part to the agreement, or Bovey, the grantee and party of the second part? How is a contract, which creates the relation of landlord and tenant, to make the grantee the landlord, and the grantor the tenant ? The contract between Drake and Bovey bears a strong resemblance to what is known in this country as a chattel mortgage. The rent charge of the English law and the chattel mortgage of ours are substantially alike, as will be pon a comparison of the two contracts. The mortgagor of chattels authorizes the mortgagee to enter upon his premises and take and carry away chattel property thereon, or

see

gro

an

ing crops; so did the grantor of a rent charge. Will it be Pretended that the mortgagee of chattels thereby obtains estate in the land which would sustain an action of ejectment to recover possession of the land, under the laws of this State? His right to such an action would be just as good as that of the grantee of a rent charge. The common law in England did not authorize ejectment in such a case. It was an action given there by statute. The statute construed the contract as a limitation to uses, and gave the action upon that theory, and not upon the theory that the operation of the condition had defeated the estate.

In a similar case, Havergill v. Hare, Cro. J. 510, it was decided that “if a rent charge be granted in fee, with a clause of distress, and a fine be levied of the lands to the use and intent that if the said yearly rent should be behind, and no sufficient distress, the grantee, his heirs or assigns may enter till the rent be paid. On half a year's rent becoming arrear, grantee may enter, for this is not a condition, but a limitation to the use."

the

27 Hen. VIII, ch. 10; 3 Cruise Dig. title 28, ch. 1, § 8; Co. Litt. 202 b; Butler's Note, 93.

How the court, in Van Rensselaer v. Slingerland, could have confounded conditions so dissimilar in their terms, and actions so dissimilar in their character, is perfectly inexplica ble, except upon the ground that their ideas upon the subject

were not

very clear.

But we are examining the case, at this time, for the purpose of ascertaining whether the court has therein declared the doctrine that a condition of re-entry can be made operative in an assignment to defeat the tenant's estate in favor of the assignor. Certainly, no such doctrine was expressed, and no such doctrine can be legitimately inferred from what was expressed. On the contrary, the implication is plain that no such notion was entertained. Otherwise, they would not have resorted to a case of an entirely different character as authority to sustain the judgment. Moreover, it is conceded that the condition could not defeat the estate, in declaring that "the objections that the plaintiff has no reversion, and that a condition of re-entry can only operate by putting an end to an estate, and cannot give an estate to a stranger to the title," would have been a perfect defence upon any theory except that of Jemmot v. Cooly.

26 N. Y. 587.

If that point may be regarded as left in doubt in that case, that doubt was dispelled in the case of Van Rensselaer v. Dennison. In the last named case, it was expressly declared that "The notion no longer prevails, that an ultimate estate remains in the grantor of a fee simple; or that he has a possible reversion by escheat, or otherwise; or that the estate granted by him is subject to certain inseparable conditions implied by law in his favor, such as that the grantee shall not alien, or shall render service or rent, and, in case of default, shall forfeit the estate. These rules, and many others that might be referred to, which were of feudal extraction, or resulted from the obligations arising out of the feudal relation, are now abrogated."

It is thus made plain and certain, that the common law rules in regard to conditions of re-entry and forfeiture, are dismissed by the court as having no application. The defendant is not divested of his estate, but only of the possession of the premises. His tenure with the State is unaffected.

While the decisions of the court of appeals are finally settled against the application and operation of the rules of the

feudal law upon a deed of assignment, the decisions in the supreme court have a tendency to create some confusion upon that Point; for that court has persisted in holding that the instruments of conveyance were leases, although they left no reversion in the assignor; that the parties were manor lords

andi

law>

nanor tenants, and the rents the rent-service of the feudal and subject to the rules which belong to feudal relations This position was contended for by that court upon the Construction forced upon the contract by the peculiar process of reasoning which has already been sufficiently examined in a previous chapter. The opinion reported in Tyler v. Heidorn, 46 Barb. 439, recapitulates the peculiarities of Van Rensselaer v. Smith, 27 Barb. 67, and the intermediate decisions in that court upon the same subject, notwithstanding the statute of 1805 had been repealed, and the remarkable construction once claimed for it, had been dismissed by the appellate court as too absurd to require a moment's notice.

In

the opinion of the supreme court, feudal relations and feudal laws are still in force here, in the full vigor of the twelfth century in England. In the opinion of the court of appeals, such relations, with all their incidental obligations, " are now abrogated," and have been so, at least, since 1787. Thus, in Van Rensselaer v. Dennison, the court of appeals repeat the decision of Van Rensselaer v. Reed, that the instrument containing the condition was an assignment, and left no possible reversion by escheat, or otherwise, in the party of the first part thereto, or in his heirs or assigns; and they unqualifiedly dismiss the anomalous idea which pervades the last named case, that feudal relations exist and feudal laws apply, notwithstanding the instrument was an assignment. It is also expressly held, that the estate could not be made subject to conditions of re-entry or forfeiture for the non-performance of services or non-payment of rents, as obligations connected with the tenure of the land. It is not denied that such was the rule in regard to assignments of estates in all cases; and as to estates in fee, it is declared to be the rule established by the act concerning tenures of 1787.