
32 U.S. 596 (____)
7 Pet. 596
RICHARD M. SCOTT, PLAINTIFF IN ERROR
v.
EZRA LUNT'S ADMINISTRATOR.
Supreme Court of United States.

*602 The case was argued by Mr Swann, for the plaintiff in error; and by Mr Jones, for the defendant.
Mr Justice STORY delivered the opinion of the Court.
This cause comes before us upon a writ of error to the circuit court for the district of Columbia, sitting in Alexandria.
The original suit is an action of covenant brought by Scott, as assignee, to recover the amount of certain rents alleged to be due and in arrear from the defendant, since the death of his intestate, under an indenture stated in the pleadings. The defendant pleaded in the first place, that he had not broken the covenants in the deed; after which plea, issue was joined. Afterwards, a general demurrer was put in to the declaration; which being joined by the plaintiff, was, upon the hearing, overruled by the court. Afterwards the plea of plene administravit was put in, which was withdrawn; and the cause was finally tried upon another plea; which, after oyer of the indenture, stated, that "before the days in the declaration specified for the payment of the rent to the plaintiff under the said deed, that is to say, on, &c. the plaintiff, under and by virtue of the condition of re-entry in the deed contained, did enter into the premises thereby demised, for non payment of certain rent then in arrear and unpaid, and held and occupied the same as vested in him by the said entry as his absolute estate;" upon which plea issue being joined, the jury found a verdict for the defendant. *603 A bill of exceptions was taken at the trial, which will presently come under consideration, as matter assigned for error.
The indenture referred to was made on the 8th of August 1799, between General George Washington and Martha his wife, of the one part, and Ezra Lunt, the defendant's intestate, of the other part. It purports, on the part of General Washington, to grant to Lunt, his heirs and assigns for ever, a parcel of land in Alexandria; he, Lunt, his heirs and assigns yielding and paying for the same, on the 8th day of August yearly, unto General Washington, his heirs and assigns, the sum of seventy-three dollars. And Lunt, and his heirs and assigns, covenant with General Washington, his heirs and assigns, that he, his heirs and assigns will yearly and every year for ever, well and truly pay the aforesaid sum of seventy-three dollars to General Washington, his heirs and assigns on the day, and at the time appointed for payment; and that it shall be lawful for General Washington, his heirs and assigns, at all times after the rent shall become due, to enter upon the premises, and distress and sale make of the goods and chattels found thereon, to satisfy the rent in arrear. And Lunt, his heirs and assigns, further covenant with General Washington, his heirs and assigns, that if the yearly rent or any part thereof, be behind or unpaid for the space of thirty days after the same becomes due and payable, and sufficient goods and chattels of Lunt, his heirs and assigns, shall not be found upon the premises to pay and satisfy the same, it shall be lawful for General Washington, his heirs and assigns, to re-enter and hold the same again, as if the indenture had never been made. And then follows a covenant of general warranty on the part of General Washington, his heirs and assigns.
The executors of General Washington, by virtue of powers given by his will, on the 25th day of August 1804, by indenture, after reciting the substance of the indenture, assigned and granted unto Henry S. Turner, his heirs and assigns, the said rent by the following descriptive terms: "the aforesaid annual rent of seventy-three dollars issuing out of and charged on the aforesaid piece or parcel of ground, herein before described" There are no words in this indenture assigning over the rights, powers, and remedies, given by the former indenture, by distress and re-entry, or the residuary interest in the premises *604 resulting from such re-entry. Turner, by another indenture on the 25th of February 1808, assigned and granted the same rent unto the plaintiff (Scott), his heirs and assigns, with the powers of distress and re-entry, and all the covenants and stipulations in the original indenture. But it is manifest, that he could not convey them, unless he had already taken them under the assignment made to him by the executors. The declaration too is founded solely upon the assignment and transfer of the rent, and contains no allegation of any assignment of the collateral rights and remedies and interests in the estate.
Under these circumstances, it is contended, that whatever might be the fate of the bill of exceptions, if the action were otherwise unobjectionable, the plaintiff, upon his own showing, has no title to recover: first, because the rent is a mere chose in action, which cannot be transferred by itself to the assignee, so as to entitle him to sue therefor in his own name: and secondly, because no suit is maintainable against the defendant as administrator, for the rent in arrear, since Lunt's decease, as there is neither privity of estate, nor of contract, between him and the plaintiff. It is added, that Lunt, in fact, in his life-time, assigned over his estate in the premises, and that his administrator is not responsible for any rent subsequently accruing and in arrear. But this fact no where appears upon the pleadings; and if it did, it would not help the defendant: for it is firmly established, that upon a covenant of this sort, the personal representatives of the covenantor are liable for the non-payment of the rent after assignment, although there may also be a good remedy against the assignee[(a)]. The laws of Virginia have not, in this respect, narrowed down the responsibility existing by the common law in England, at the emigration of our ancestors.
Whether the plaintiff as assignee of the rent, not being assignee also of the estate, in the premises, or of the right of re-entry, can maintain the present suit, is quite a different question. If he had been the assignee of the estate, or of the right *605 of re-entry, as well as of the rent, he would clearly be entitled to maintain it; for the laws of Virginia are in this respect co-extensive with those of England. The common law of England, and all the statutes of parliament made in aid of the common law prior to the fourth year of the reign of king James the first, which are of a general nature, and not local to the kingdom, were expressly adopted by the Virginia statute of 1776[(a)]; and the subsequent revisions of its code have confirmed the general doctrine on this particular subject. The very point was decided in Havergill v. Hare, Cro. Jac. 510. There A. being seised of an estate in fee, by indenture granted to B. his heirs and assigns, a fee farm rent with a clause of distress; and covenanted to levy a fine to uses, for securing the payment of the rent; so that, if the rent should be in arrear, B. his heirs and assigns might enter into the land, and enjoy the rents thereof, until the rent in arrear should be paid to them; and B. assigned, by a bargain and sale to C. the rent, "with all the penalties, forfeitures, profits and advantages, comprized in the indenture." The fine was levied, the rent was in arrear, and C. entered, and brought ejectione firmæ; and a special verdict having been found, stating the above facts, one question was, whether this contingent and future use to arise upon non-payment of the rent, was transferable over to C., by the bargain and sale. It was strongly urged by the defendant's counsel, that it is a matter in privity and possibility only, which is not transferable before it falls in esse. But all the justices resolved, that it being a matter of inheritance, and being for the security for the payment of the rent, and waiting upon the rents, might well be transferred with the rent; and by the grant of the rent, the penalty and advantage well passed. But if it had been a mere possibility, not coupled with any other estate, then it had not passed. This case is full to the purpose that such a right of security is capable of being transferred, with the rent, by apt words; and even so transferred, gives the assignee a legal title both to the rent and the attendant remedies. It leaves, however, the point untouched, whether the mere transfer of the rent, without any transfer of the right of entry (as in the present case), would give the assignee *606 a right to maintain an action for the rent, seeing it is not knit by any priority of right or estate to the premises. Upon full consideration, however, we are of opinion that the assignee of a fee farm rent, being an estate of inheritance, is upon the principles of the common law entitled to sue therefor in his own name. It is an exception from the general rule, that choses in action cannot be transferred; and stands upon the ground of being, not a mere personal debt, but a perdurable inheritance. Thus, if an annuity is granted to one in fee, although it be a mere personal charge, yet a writ of annuity lies therefor by the common law; not only in favour of the party and his heirs, but of their grantee. So the doctrine is expressly laid down by Lord Coke, Co. Litt. 144, b., and he is fully borne out by authority[(a)]: and in like manner for a rent granted in fee and charged on land, a writ of annuity also lies in favour of the assignee, at his election[(b)].
And since the statute of 32 Henry 8, ch. 34, covenants of this sort running with the estate or inheritance, are transferable to the assignee with a full right to the benefit thereof. So that there is no difficulty upon principles of the common law, in giving effect to the present action. Whether the present plaintiff has any right to re-entry is a very different question, upon which in the present posture of this case it is unnecessary to give any opinion. It is clear, by the common law, that a right of re-entry always supposes an estate in the party; and cannot be reserved to a mere stranger. So the law was laid down by the twelve judges, in Smith v. Packard, 3 Atk. 135, 140; and Lord Chief Justice Willis, on that occasion, in delivering their opinion, said, "therefore I have always thought, that if an estate is granted to a man reserving rent, and in default of payment a right of entry was granted to a stranger, it was void." What effect the statute of 32 Henry 8, ch. 34, or the provisions of the revised code of Virginia, may have upon this point is a question not now before us.
We proceed, then, to the consideration of the bill of exceptions. *607 Two instructions were prayed by the plaintiff, and one by the defendant. The latter was given by the court, and with reference to the state of the pleadings, we see no objections thereto: the difficulty is in the refusal of the second instruction prayed by the plaintiff. It is as follows: "the plaintiff prayed the court to instruct the jury that the time at which the re-entry ought to be made, depended upon the lease given in evidence by the plaintiff as aforesaid, and could not be varied by the evidence given as aforesaid by the defendant; and that if they found that a re-entry had been made, that it ought to be such as would conform to the deed; and that a mere occupation of the premises by a landlord or his agent, or the receipt of rents of the premises, did not of themselves amount to a re-entry." The court refused to give the instruction, being of opinion that it was competent for the said Schofield, the actual tenant, to waive any of the formalities required by law for his benefit.
Now, however correct may be the opinion of the court of this right of waiver upon general principles, still the question is, whether with reference to the actual terms of the pleadings and issue before the jury, the instruction prayed for was not such as ought, upon principles of law, to have been given. It is wholly immaterial, whether the pleadings might not have been so framed upon the facts as to have presented a complete defence to the action. The instruction prayed has reference to the pleadings in the case. The averment there is, that the plaintiff entered on the premises under and by virtue of the condition of re-entry in the original deed, mentioned, for non-payment of the rent; and upon the issue joined, this was the material inquiry. It is clear, that, upon such an issue, no entry not conforming to that deed, and no evidence of an entry varying from it, would be admissible to support it. The sufficiency of the evidence before the jury to support the issue was properly left for their consideration. But the defendant had a right to the instruction, that the proof must conform to the allegations in the pleadings. For these reasons we are of opinion that the circuit court erred in refusing the above instruction; and the judgment must on this account be reversed and a venire facias de novo be awarded
NOTES
[(a)]  See Comyn's Dig. Covenant, C. 1. Bacon, Abridg. Covenant, E. 1, 4. Barnard v. Godscall, Cro. Jac. 309. Orgill v. Kemshead, 4 Taunt. Rep. 642.
[(a)]  See 1 Virginia Revised Code, ch. 38, p. 135, edition of 1819.
[(a)]  See Co. Litt. 144, b., Hargrave's note, 1; Gerrard v. Boden, Hetley, 80; Mound's case, 7 Co. Rep. 28, b.; 1 Thomas's Co. Litt. 448, note F. and 449, note (9); Bac. Abridg. Annuity, C., Com. Dig. Annuity, E.
[(b)]  Co. Litt. 144, b.
