GROUND RENT. Rent paid for the pri vilege of building on another man's land. Johnson ; Webster. A rent reserved by the owner of unimproved land upon a lease of the land to be built upon, as contradistin guished from the rent paid to the lessee by his tenant of the premises where the buildings are erected, and from the ordinary rent paid by the tenant to his landlord upon a demise of lands and tenements.
A rent reserved to himself and his heirs, by the grantor of land in fee-simple, out of the land conveyed. See 9 Watts, Penn. 262; 8 Watts & S. i)enn. 185 ; 2 Am. Law Reg. 577.
2. In Pennsylvania, it is real estate, and in case of intestacy goes to the heir. 14 Penn. St. 444. The interest of the owner of the rent is an estate altogether dis tinct and of a very different nature from that which the owner of the land has in the land itself. Each is the owner of a fee-sim ple estate. The one has an estate of inherit ance in the rent, and the other has an estate of inheritance in the land out of which the 'rent issues. The one is an incorporeal inhe .ritance in fee, and the other is a corporeal inheritance in fee. Irwin v. Bank of United 'States, 1 Barr, 349, per Kennedy, J. So, the owner of the rent is not liable for any,part 'of •the taxes assessed upon the owner of the land out of which the rent issues. 1 Whart. Penn. 72 ; 4 Watts, Penn. 98. Being real estate, it is bound by a judgment, and may be mortgaged like other real estate. It is a rent-service. 1 Whart. Penn. 337.
A ground-rent, being a rent-service, is, of course, subject to all the incidents of such a rent. Thus, it is distrainable of common right, that is, by the common law. Coke, Litt. 142 a; Renege v. Elliott, supra. So, also, it may be apportioned. Ingersoll v. Ser geant, supra. Aud this sometimes takes place by operation of law, as when the owner of the rent purchases part of the land ; in which case the rent is apportioned, and ex tinguished pro tanto. Littleton, 222. And the reason of the extinguishment is that a rent service is given as a return for the possession of the land. Thus, upon the enjoyment of the land depends the obligation to pay the rent ; and if the owner of the rent purchases part of the land, the tenant no longer en joying • that portion is not liable to pay rent tor it, and so much of the rent as issued out of that portion is, consequently, extinguished. See 2 Blackstone, Comm. 41; 1 Whart. Penn. 235, 352; 3 id. 197, 365.
3. At law, the legal ownership of these two estates—that in the rent and that in the land out of which it issues—can coexist only while they are held by different persons or in different rights ; for the moment they unite in oneperson in the same right, the rent is and extinguished. 2 Binn. Penn.
142; 3 Penn. Law Jour. 232; 6 Whart. Penn. 382; 5 Watts, Penn. 457. But if the one estate or intestate be legal and the other equi table, there is no me . 6 Whart. Penn.
283. In equity, ho , this doctrine of merger is subject to v great qualification.
A. merger is not favored in equity; and the doctrine there is that although in some cases, where the legal estates unite in the same person in the same right, e, merger will take place against the intention of the party whose interests are united (see 3 Whart. Penn. 421, and cases there cited), yet, as a general rule, the intention, actual or presumed, of such party will govern; and where no intention is expressed, if it appears most for his advan tage that a merger should not take place, such will be presumed to have been his inten tion ; and that it is only in cases where it is perfectly indifferent to the party thus ir.te rested that, in equity, a merger occurs. 5 Watts, Penn. 457 ; 8 id. 146; 4 Whart. Penn. 421; 6 id. 283; 1 Watts & S. Penn. 487.
4. A ground-rent being a freehold estate, created by deed and perpetual by the terms of its creation, no mere lapse of time with out demand of payment raises, at common law, a presumption that the estate has been released. 1 Whart. Penn. 229.
But this is otherwise in Pennsylvania now, by act of April 27, 1855, sec. 7, Pamph. Laws, 369, whereby a presumption of a release or extinguishment is created where no payment, claim, or demand is made for the rent, nor any declaration or acknowledgment of its ex istcnce made by the owner of the premises subject to the rent, for the period of twenty Jlle years. This applies to the estate in the rent, and comprehends the future pay ments. But, independently of this act of assembly, arrearages of rent which had fallen due twenty years before commence ment of suit might be presumed to have been paid. 1 Whart. Penn. 229. These arrear ages are a lien upon the land out of which the rent issues; but, as a general rule, the lien is discharged by a judicial sale of the land, and attaches to 61 fund raised by the sale. See 2 Binn. Penn. 146; 3 Watts & S. Penn. 9; 8 id. 381; 9 id. 189; 4 Whart. Penn. 516; 2 Watts, Penn. 378 ; 3 id. 288; 1 Penn. St. 349; 2 id. 96.
5. As ground-rent deeds are usually drawn, the owner of the rent has three remedies for the recovery of the arrearages, viz.: by ac tion, distress, and (for want of sufficient dis tress) the right to re-enter and hold the land as of the grantor's former estate. See 2 Am. Law Reg. 577; 3 id. 65.