be no resort to the fund which was the proceeds of the sale of the land; and that where such was the case, at any rate, the right of distress, which was a totally distinct remedy from any looking to the land itself, remained unaffected by the sale.

The Chief Justice refers to the case of Nichols vs. Postlethwaite with apparent approbation, certainly without gainsaying it, and assigns as the probable reason why the Court, in that case, sanctioned a resort to the fund, that the land might have been sold on judgment and execution for the legacy. Now, in the very case of Sands vs. Smith, which the Chief Justice was deciding, precisely the same thing could have been done, for the remedy by distress was not the only one furnished by the deed, but the covenant to pay was there also, by means of which the land "might have been sold on judgment and execution" for the rent. It might, therefore, seem that if the Chief Justice intended to endorse the case of Nichols vs. Postlethwaite, upon the ground named by him, he must have overlooked the facts in Sands vs. Smith, and the reasoning upon which the decision in the latter case is based would be, therefore, erroneous. But we do not think this a correct view of the case. The Chief Justice adverts to the fact that in all the precedents the money was charged on the land. In Nichols vs. Postlethwaite, although the legacy was not expressly charged upon the land, yet it was thus charged by operation of law, and the judgment and execution would have been but the means of reaping the fruits of this charge, whereas, in Sands vs. Smith, there having been no right of re-entry provided by the deed, the rent, as we shall have occasion hereafter to remark, was not a charge on lien upon the land, and an execution upon a judgment for such rent could be levied upon the land only in the same manner as it could be levied upon any other property of the defendant. In the one case the land was made debtor for the money, without regard to the judgment, and in the other it

was not.

We have said the reasoning upon which the decision in Sands vs. Smith was based might seem erroneous, if the case of Nichols vs. Postlethwaite were sustained upon the ground mentioned; and we have said this because we are not prepared to affirm that the result

would have been different had the Court been of opinion that under the deed the owner of the rent could have resorted to the fund, (although the argument certainly leans that way) for the Court seem to intimate that, upon principle, whether the arrears of the rent be thrown upon the lien creditors, or on the purchaser, "the remedy by distress of chattels on the land is as accessible in the one case as in the other; and there is no legal necessity that the arrears should be taken out of the fund in Court." The doctrine of the case of Bantleon vs. Smith is, that the remedies are concurrent, and all may be pursued until satisfaction. Suppose, then, a resort to the fund without any, or without complete satisfaction—does not the right of distress still exist for the whole in the one case, and the balance in the other? Nay, further, is not the doctrine of this case broad enough to sanction the idea that, though the deed contains all the usual covenants, there is no obligation on the part of the owner of the rent to resort to the fund, in order to preserve his right of distress? If each of the several remedies may be pursued until satisfaction, and if a judicial sale does not, as is shown by Sands vs. Smith, necessarily destroy the right of distress in the same manner as the lien against the land itself for the rent would be devested, this result might seem to follow. At all events the extent to which the cases have gone is, that where the deed provides an express remedy against the land, the owner of the rent must resort to the fund, and the land passes to the purchaser discharged of any liability against it; but if the deed provides no such remedy, or no such remedy by re-entry, the right of distress remains. No case has held that the right of distress is gone when the deed gives the remedy, by re-entry, against the land. And if this right survives, since ground rents are rents service, to which distress is inseparably incident, the case would not seem to be altered if the deed did not contain the clause of distress.

As to the "principle of lien" on which Bantleon vs. Smith was decided, and which Chief Justice Gibson declared he could never understand, we have now a word to say.

The distinguished counsel who argued the cause for the judgment creditors stated, that the "lien of a landlord for his arrears is

founded exclusively upon his right to distrain, and for want of distress to re-enter." The Court assumed the lien to exist, but evidently did so upon the grounds on which the argument of counsel had placed it; for in discussing the question of interest upon the arrears, Chief Justice Tilghman limits the right of the owner of the rent to the principal of the arrears, because his right of re-entry under the deed gave him the right of holding only until the principal was paid, and intimating that if the deed had given the right of re-entry as of the grantor's former estate, he might have been entitled to interest also-thus measuring the extent of the lien by that of the right of re-entry. Chief Justice Gibson, himself, surmised that this, together with the principle of policy of giving the sheriff's vendee a clear title where practicable, was probably the principle of the lien. This subject is noticed and commented upon in volume II. of Penn. Law Jour., page 182. The writer alludes to the decision in Bantleon vs. Smith as to the priority of the lien for rent, and says: "But it is remarkable that no principle is referred to by the counsel on either side, or by the Court, as the foundation. of the doctrine. It is treated all around as if it were a consequence of the rights of distress and re-entry reserved by the deed; but nothing is said to show how this consequence is to be inferred, nor is the justice of the mere inference gainsayed by the opposite counsel." It is very true that no explanation is given as to how the priority of lien is the result of the right of distress and re-entry. We think, however, the reason is obvious. The right of re-entry gives to the owner of the rent the right against the grantee of the land, and those claiming under him, to enter upon and hold the land either until his arrears are paid, or as of the grantor's former estate, as the case may be. This right existing, the owner of the rent has a right to the land itself against all persons from the date of the grantee's deed whereby the rent is reserved, down to the last owner or incumbrancer claiming under him. In view of this right, either because the law abhors forfeitures, or for convenience sake, or by reason of the principle of policy of giving the sheriff's vendee a clear title, where practicable, when the land is sold and converted into money the Courts have held this right to the land to

be transferred to the fund so far as to pay the arrears, sometimes with and sometimes without interest, according to the circumstances of each particular case. This right once transferred to the fund, therefore, necessarily reverted back to the date of the ground-rent deed, and took priority over all claiming under the grantee subsequently. This seems plain and reasonable. The writer alluded to, however, suggests another principle by which the lien could be sustained, and which we think entitled to consideration. It is that of equitable lien for the purchase money of the land. A ground rent is the purchase money, and, although the principle of equitable lien has been exploded in Pennsylvania, as stated by Chief Justice Gibson in Sands vs. Smith, yet, observes this writer, at the time of Bantleon vs. Smith it had not been questioned here; and the objections to the principle are founded altogether upon our policy as to notice of liens, which could not apply to the arrearages of rent, as no new principle of notice is introduced.

The next case in point of time was that of Buck vs. Fisher (4 Wh. 516), decided in 1839. This was an action of covenant for arrears of the ground-rent. The deed contained the "usual covenants on the part of the grantee." On the trial below, the judge charged the jury that the plaintiff was entitled to interest from the several days on which the ground-rent became payable. Upon exceptions to the charge this point was given up on the argument before the Court above, and the judgment was affirmed without allusion to it.

This case was succeeded by Dougherty's Estate (9 W. & S. 189), decided December Term, 1844. There had been a sale of the land under the judgment of a stranger. Arrearages of ground rent and interest were claimed. The deed contained the clause of distress, and if sufficient distress not found, to enter and rent the premises for such a length of time as might be sufficient to discharge the rents, and if neither goods nor buildings be found, and the rent be in arrear over one hundred dollars, then to hold as though the indenture had not been made. The arrears exceeded one hundred dollars. The Court below confirmed the auditor's report, awarding the principal without the interest of the rent, and this judgment, on the authority of Bantleon vs. Smith, was affirmed.

Next followed Pancoast's Appeal, (8 W. &. S. 381,) decided March Term, 1845. The land was sold under the judgment of a stranger. The ground rent deed contained the usual covenants and clauses of distress, re-entry, &c. The Court below decreed the arrears of ground-rent and interest out of the fund, and this decree on appeal was affirmed. No allusion whatever being made by the Court or counsel, as far as appears from the case, to the claim for interest. The opinion is very brief, re-affirming Bantleon vs. Smith, and repeating that Sands vs. Smith was not intended to impair its authority, and intimating that the former case "was not thought to be so conclusively founded in legal reasoning, as to be a rule for cases in which the premises were not debtor for the rent," in which latter description Sands vs. Smith was supposed to fall. In reference to the main point, the Court say, "Here there was a clause of re-entry, as there was in Bantleon vs. Smith; and as the tenant's estate was immediately liable to make satisfaction, what matters it whether it has been sold on a judgment recovered by a stranger, or on a judgment recovered by the landlord on the covenant in his ground rent deed? The landlord had a lien on the estate of the tenant, and he may have recourse to its substitute brought into Court, however the conversion into money may have been effected." The last case we have to notice is that of Ter-Hoven vs. Kerns, (2 Barr, 96,) decided December Term, 1845. This was also a sale by a stranger, and arrears of ground rent, with interest, were claimed. No reference is made in the case to the covenants in the ground rent deed, but it was held, and seems to have been stated as a general proposition, on the authority, again, of Bantleon vs. Smith, that the owner of the rent was entitled to the principal, but not the interest, out of the fund.

Such are the authorities upon this subject, and we think the following conclusions are to be drawn from them :

First. Without regard to the special covenants in the ground rent deed, if the proceeds of the sale of the land are not sufficient to pay the arrears of ground rent, the owner of the rent may distrain upon the land in the hands of the Sheriff's vendee, for whatever amount the fund was deficient.