The opinion of the Court was delivered by
Gibson, C. J.— I have never understood on what principle of lien the case of Bantleon v. Smith, (2 Binn. 151), was decided. It seems to have been taken for granted that every charge on land which is liquidated and due at the time of a judicial sale of it, is to come out of the proceeds as a matter of course—a principle far in advance of the one established by us in Willard v. Norris, (2 Rawle 56) which was so unpalatable to the profession that a statute was procured to overturn it. But though a wholesome one, in the main, it is not of universal application. Arrears of rent do *13not come out of the purchase money where the term has been sold; and it required a statute to give preference over the lien of an execution levied on personal.chattels, in favour of the landlord, for even a year’s rent. And what difference is there, in this respect, between real and personal interests? The statute of Weslm. 2, which created the lien of a judgment, restrained it to land; but a lien independently of the statute is as applicable to a chattel. Yet in Bantleon v. Smith the ground landlord’s preference was carried back beyond the lien of his judgment, so as to shut out an intervening one; and if that could be done, he might have come into court for his ground-rent without a judgment for it. Such indeed was once the practice in regard to purchase money due by the judgment debtor, on the notion, exploded in this state, of the existence, in such a case, of an equitable lien. There is no more reason that a prospective duty charged on land should follow it into the hands of a sheriff’s vendee, than that instalments presently due should follow it; and it could not be tolerated that a ground landlord should be at liberty to throw the arrears of his rent on the lien creditors, or on the purchaser, according to the impulse of his caprice. 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. Yet it is not my purpose to disturb, or cast the least shadow on the authority of Bantleon v. Smith, or to do more than show that it is not founded in any principle of lien peculiar to the reservation of a ground-rent, which it is necessary to carry out further than the decisions have already carried it. The case of Nichols v. Postlethwaite, (2 Dall. 131), in which a legacy charged on land was allowed to be taken out of the price of it in the sheriff’s hands, as well as all others of the same stamp, depend for their authority exclusively on precedent, and their very great convenience, as well as on the policy of giving the sheriff’s vendee a clear title, where it is practicable. But neither policy nor convenience will justify an extension of the principle of them to the price of land which was not liable - to be reached for the debt; and in all thp precedents the money was not only charged, but there was a means of subjecting the land to payment of it. In Bantleon v. Smith, there was a clause of re-entry by which the land itself might be seized, and the produce of it applied, if not at law, yet in equity, to payment of the rent; and in Nichols v. Postlethwaite, it might have been sold, on judgment and execution, for the legacy: but it was perhaps the difficulty of reaching it, in either of those ways, as well as the principle of policy, which inclined the courts to apply the proceeds of it, when turned into money. Now what is the remedy by distress — the only one provided in this conveyance ? It is as much a personal one as an action on a covenant in the deed; it is even more so, as the land may be reached by such an action, while it cannot be reached by a distress, which *14operates merely on chattels found upon it. Though a rent issues out of the land, it is not an encumbrance on it, for a part of the thing demised cannot be reserved; and a distress for it is no more than a means of extorting payment from the personal property of the tenant. The defendant, therefore, was at liberty to distrain for the arrears due at the sheriff’s sale.
Judgment of the court below reversed, and judgment here for the defendant below.