GROUND RENT. A rent reserved to him self and his heirs, by the grantor of land in fee-simple, out of the land conveyed. See Kenege v. Elliott, 9 Watts. (Pa.) 262 ; Bol ler v. Kuhn, 8 W. & S. (Pa.) 185. • In Pennsylvania it is real estate; Cobb v. Biddle, 14 Pa. 444. See Hirst's Estate, 147 Pa. 319, 23 Atl. 455. 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-simple es tate. The one has an estate of inheritance 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 inheritance in fee, and the other is a corporeal inherit ance in fee; Irwin v. Bank, 1 Pa. 349; Tay lor v. Taylor, 47 Md. 300. So, the owner of the rent is not liable for any part of the tax es assessed upon the owner of the land out of which the rent issues ; Philadelphia Li brary Co. v. Ingham, 1 Whart. (Pa.) 72. Be ing real estate,, it is bound by a judgment, and may be mortgaged like other real estate. It is a rent-service; Ingersoll v. Sergeant, 1 Whart. (Pa.) 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 ; Co. Litt. 142 a; Kenege v. Elliott, 9 Watts (Pa.) 262. So, also, it may be apportioned; Ingersoll v. Sergeant, 1 Whart. (Pa.) 337; Myers v. Sill jacks, 58 Md. 323. And this sometimes takes place by operation of law, as when the own er of the rent purchases part of the land; in which case the rent is apportioned, and ex tinguished pio tanto; Littleton 222. And the reason of the extinguishment is that a rent-service is given as a return for the pos session of the land. Thus, upon the enjoy ment of the lands depends the obligation to pay the rent ; and if the owner of the rent purchases part of the land, the tenant, no longer enjoying that portion, is not liable to pay rent for it, and so much of the rent as issued out of that portion is, consequently, extinguished. See 2 Bla. Com. 41; St. Mary's Church v. Miles, 1 Whart. (Pa.) 235; Inger soll v. Sergeant, id. 352.
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 one person in the same right, the rent is merged and extinguished ; Phillips v. Bonsall, 2 Binn. (Pa.) 142 ; Penington v. Coats, 6 Whart. (Pa.) 283. But if the one estate or interest be legal and the other equitable, there is no merger ; Penington v. Coats, 6 Whart. (Pa.) 283. In equity, how ever, this doctrine of merger is subject to very 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, a merger will take place against the intention of the party whose interests are united (see Helmbold v. Man, 4 Whart. (Pa.) 421, and cases there cited), yet, as a general rule, the intention, actual or presumed, of such party will govern; and where no in tention is expressed, if it appears most for his advantage that a merger should not take place, such will be presumed to have been his intention ; and that it is only in cases where it is perfectly indifferent to the party thus interested that, in equity, a merger oc curs ; Dougherty v. Jack, 5 Watts (Pa.) 457,
30 Am. Dec. 335 ; Helmbold v. Man, 4 Whart. (Pa.) 421; Richards v. Ayres, 1 W. & S. (Pa.) 487.
A ground-rent being a freehold estate, cre ated by deed and perpetual by the terms of its creation, no mere lapse of time without demand of payment raises, at common law, a presumption that the estate has been re leased; Trustees of St. Mary's Church v. Miles, 1 Whart. (Pa.) 229. But this is other wise in Pennsylvania now, by act of April 27, 1855, sec. 7, P. L. 369, whereby a pre sumption 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 existence made by the owner of the premises subject to the rent, for twenty-one years. This applies to the estate in the rent, and comprehends the future pay ments. And this act makes no exception in behalf of persons under disability when the title accrues, nor of persons taking as heirs at law or distributees ; where a life tenant in ground rent released the same absolutely, as against the remainderman the limitation commenced to run from the date on which the first payment thereafter became due and unpaid, rather than at the death of the life tenant; Wallace v. Church, 152 Pa. 258, 25 Atl. 520. It has been held that this act, af fecting the remedy merely, is not unconstitu tional as impairing the obligation of a con tract; Biddle v. Hooven, 120 Pa. 221, 13 Atl. 927 ; Clay v. Iseminger, 190 Pa. 580, 42 Atl. 1039, affirmed in Wilson v. Iseminger, 185 U. S. 55, 22 Sup. Ct. 573, 46 L. Ed. 804. Inde pendently of this act of assembly, arrear ages of rent which had fallen due twenty years before commencement of suit might be presumed to have been paid ; Trustees of St. Mary's Church v. Miles, 1 Whart. (Pa.) 229. These arrearages are a lien upon the land out of which the rent issues; but, as a general rule, the lien is discharged by a ju dicial sale of the land, and attaches to the fund raised by the sale. See Bantleon v. Smith, 2 Binn. (Pa.) 146, 4 Am. Dec. 430; Sands v. Smith, 3 W. & S. (Pa.) 9; Buck v. Fisher, 4 Whart. (Pa.) 516; Catlin v. Robin son, 2 Watts (Pa.) 378 ; Irwin v. Bank, 1 Pa. 349.
Ground rents in Pennsylvania were for merly made irredeemable, usually after the lapse of a certain period after their creation. But now the creation of such is forbidden by act of 22 April, 1850. But this does not prohibit the reservation of ground-rents re deemable only on the death of a person in whom a life interest in the rents is vested; Skelley's Appeal, 11 W. N. Cas. (Pa.) 11. The act of April 15, 1869, providing for the extinguishment of irredeemable ground-rents, theretofore created, by legal proceedings in stituted by the owner of the land, without the consent of the owner of the ground-rent, was declared unconstitutional ; Palairet's Appeal, 67 Pa. 479, 5 Am. Rep. 450.
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 (of debt or covenant; but debt is now seldom employed), distress, and (for want of sufficient distress) the right to re-enter and hold the land as of the grantor's former estate.
As used in a 99-year lease renewable for ever, it includes not only the rents but in cludes the reversion; Camp v. Boyd, 229 II. S. 530, 33 Sup. Ct. 785, 57 L. Ed. 1317.
See 2 Am. L. Reg. 577; 3 id. 65 ; Cadw. Gr. Rents; Mitch. R. P.