delivered the opinion of the court. Several points have been raised and discussed in the argument, upon which it is unnecessary to express any opinion. Whether the covenant relating to the common of estovers and pasture, rims with the land, and binds the assignee of the rent; whether if the landlord approves, or encloses a part or the whole of the commons, the rent thereby becomes suspended ; whether a rent, strictly speaking, can be reserved upon a demise of an incorporeal hereditament, are all questions which it is not requisite to decide, in this case. The right of common, of which the defendant complains she has been, deprived, forms no part of the premises granted to Harder, under whom she claims; neither is the rent reserved upon the right of common, but is, on the contrary, expressly upon the “ lands grantedbeing the yearly tenth part of all the produce “ thereof.”
*498Considering the nature of the rent reserved by this conveyanee, it may well be questioned whether the covenant, in reía» tion to the right of commons, had any effect upon the amount agreed to be paid. In all the books in which it is said that an eviction by the landlord operates either a suspension or apportionment of the rent, (according to the nature and extent of the eviction,) it will be found that the eviction was of a part, or the whole of the premises demised; and I take occasion here to observe, that I must not be understood as admitting that any of the cases referred to by the defendant’s counsel are applicable to this case. The estate here granted being an estate in fee, the common of estovers and of pasture, mentioned in this covenant, are of that species which are denominated appurtenant, and not appendant, between which there hre many essential differences. The former does not arise from any connexion of tenure, and may be created by grant, or claimed by prescription ; whereas the latter can only arise from prescription. The question, then, is, whether the right of common, in this case, is to ' be considered as part of the thing granted by the deed to Harder, by virtue of which it is claimed, or as resting merely in covenant. Although the proper technical words of a grant are, “ dedi et concessi,” yet it is not to be disputed that other words manifesting that a grant was intended by the parties, will have the same, effect, and this intention is to be collected from a careful consideration of the entire deed.
Whether, according to the fair construction of the covenant In question, the grantee acquired a right of common, after there ghould he no more waste and unappropriated land in the tract called Claverack, in consequence, of the settlement and improvement of the country, is a point which I do not intend to examine or decide; but I think it quite clear, looking at all the provisions in this conveyance, that the right of common constitutes no part of the premises - granted by it. The words of the grant, the habendum, the reservation of, and the covenant to pay the rent, all refer to the lands described in, and granted by, the conveyance. From this, it is evident that when the parties intended, the one to make, and the other to receive, a grant, they adopted the apt and technical words to accomplish that purpose, according to their established and legal signification and effect, After these parts of the conveyance, comes the stipulation relative to the right of common, which, in its terms-, *499is not a grant, but stri'-tly a covenant. The words here made tise of, unlike those by which the lands are conveyed, are words of promise and agreement only, as distinguished from words of grant. Aunties la we^bis nulla est ambiguitas, ibi nvlla exposiiio contra verba expressa fienda cst. The language of the deed, where a grant is intended, is, “ grant, bargain, and sell,” but when the grantor intends to bind himself by a covenant only, he uses words clearly evincing such intention.
If this covenant has been broken, the only remedy is by an action upon it against such persons as may, in judgment of law, be considered responsible for the consequences of a mon-performance 5 but as long as the tenant continues in the unmolested enjoyment of land granted, a \iolation of the covenant is no defence against an action for the recovery of the rent» The cases cited by the counsel for the defendant, in relation to this branch of the case, (and my researches have led me to the examination of several more,) all proceed upon the ground, that an eviction to produce suspension or apportionment of the rent, must be of á part, oí of the whole of the thing demised, and upon which the rent is reservedand, as in this case the right of common is not to be considered as part of the grant, according to the legal import of that term, this defence cannofi be sustained-
íTudgment for the plaintiff