48 Pa. 382 | Pa. | 1865
The opinion of the court was delivered, by
— We look upon the instrument of writing of the 12th September 1857, between John Bortz and wife and Margaret Bortz, as an executed conveyance. The rule stated in Sherman’s Lessee v. Dill, 4 Yeates 298, and by Sergeant, J., in Kenrick v. Smick, 7 W. & S. 45, and Strong, J., in Ogden v. Brown, 9 Casey 249, is, that from the intention of the parties, as collected from the instrument itself, we must judge whether the writing is an executed conveyance or only executory. Where it is doubtful upon its face, light may be shed upon it by the attending circumstances.
In determining this intention, ex visceribus, the first rule is to inquire whether the language imports a present conveyance, or whether, collecting all its parts, it contemplates a further assurance to pass the title: Grey v. Packer, 4 W. & S. 17; Garver v. McNulty, 3 Wright 484. The instrument in the case before us, both in the granting part and in the habendum and tenendum, uses the ordinary formal language of a deed of conveyance, and most distinctly conveys the title, in the usual mode by the past and present tense. Now, unless this express language is coun
The only fact that appears, from which any inference can be drawn, is, that the consideration expressed is to be paid in future annually during the lives of John Bortz and Eve his wife, with a provision for increase or reduction in case the annual sum should be too little or too much for their support in their customary manner of living. But no inference as to the character of the conveyance can be legally drawn from the fact of future payment, unaccompanied, as here, by any conditions, covenants, or restrictions relating to the title, to restrain its present passing. It has been well said by Lowrie, C. J., in Nease’s Appeal, 7 Casey 294, and by Thompson, J., in Garver v. McNulty, 3 Wright 483, that the instrument may be executed as to one party and executory only as to the other. This was manifestly the character of the instruments in the cases of Cook v. Trimble, 9 Watts 15, Gray v. Packer, 4 W. & S. 17, Hepburn v. Snyder, 3 Barr 72, and Garver v. McNulty, above referred to. In all these cases, these writings were decided to be executed conveyances by the grantor, while the grantee’s covenants for the consideration were executory.
In Cook v. Trimble, 9 Watts 15, the conveyance was in consi deration of $160 and a comfortable support and living, to be given to the grantor, his wife and daughter, during their natural lives. This case is an authority upon another point, which touches the construction of the writing, to wit, that the stipulation for a living imported no condition, but was merely the recital of the consideration. Garver v. McNulty is an authority directly in point in this case. There the instrument was an agreement, was signed by both parties, and contained a condition precedent, that the grantee was to furnish the grantor with another house and garden. In the opinion of the court, delivered by Thompson, J., none of these features were deemed sufficient to take from the instrument its character as an executed conveyance. It was also in consideration of a comfortable support during natural life.
To these cases we add Heister v. Green, decided at this term, ante, p. 96, opinion by Woodward, C. J., in which it was held that a recital in a deed that the purchase-money was unpaid and was to be paid annually, created no lien on the property conveyed. The executed character of the deed on part of the grantor, and executory on part of the giantee, were fundamental elements in that case.
Kenrick v. Smick, 7 W. & S. 41, Williams v. Bentley, 3 Casey 294, and Ogden v. Brown, 9 Id. 247, furnish precedents of instruments construed to be executory only, but are not opposed
The fact that Margaret Bortz was a married woman when the agreement was made, will not prevent the estate from vesting in her by the conveyance. She is capable of taking a conveyance to herself, and even tbe fact that it is encumbered with a condition will not prevent its vesting tbe title: 2 Black. Com. 203; Patterson v. Robinson, 1 Casey 81; Ramborger v. Ingraham, 2 Wright 146 ; Black v. Galway, 12 Harris 18. The verdict being for the defendant, the mistake of the court below as to the character of the instrument did no injury.
The judgment is affirmed. ■
