104 Pa. 575 | Pa. | 1883
delivered the opinion of the court, January 7th 1884.
This ejectment was brought to recover the possession of a ¡Dart of out-lot No. 200, in the reserve tract, opposite the city of Pittsburgh, in the county of Allegheny. The facts from which the controversy arises are admitted on both sides, and .are fully set forth in the formal bill of exceptions, sealed in the court below.
At the time pf the execution of the deed to Harvey Boll-man, in the year 1854, Carson, the grantor, held in the lands in dispute an estate for life only as tenant by the curtesy; the fee was vested in the heirs at law of Nancy Carson, the deceased wife of the grantor. The deed, however, purported to convoy-an fee-simple, and contained express covenants of general warranty of title in the usual form. Subsequently, John Carson and his sister Nancy, who was intermarried with John R. McFadden, two of the said heirs, became the owners in common of the fee, subject to the curtesy, one half part thereof by descent, and the other half by purchase of the remaining heirs, through the deed of Hugh S. Fleming. John R. and Nancy McFadden, having died, left surviving them one son, William McFadden. This suit was brought by the said John Carson and William McFadden, who claimed the fee, after the death of the tenant by curtesy, to recover the possession as against the defendants, who hold under the title of Harvey Bollman. It is admitted that the plaintiffs, at theinstitution of the suit, were and still are seised of shares in the real estate late of William Carson, which exceed in value the interests they claim in the locus in quo.
Under this state of facts, it is contended on the part of the defendant, that the plaintiffs are by the warranty of William Carson estopped or barred from asserting their title; that as far as they have assets in fee simple as heirs, they are barred, by force of the warranty of their ancestor, operating as a re-butter. The general rule of law thus invoked is doubtless a very ancient one ; it was one of the operating principles of the common law warranty, which filled so important a place in the English law of real property. The reason for the application and enforcement of such a rule at the common law was not more apparent, however, than under our present system, and .under some modifications the same rule obtains in this country
As the result of legislation, from time to time, warranty m its original form in England has long ago been abandoned, the whole system having been abolished by the statute 3 and 4 William IV. cc. 27 and 74; whilst the remedy by ancient warranty may be said never to have had any general practical existence in the United States. Personal covenants have superseded the warranty of the common law. In the discussion
“ The effect of a covenant of warranty, by way of rebutter,”, says Washburne in his treatise on the Law of Real Property, Vol. 3, page 480, “is illustrated in the case of Bates v. Nor-cross, already cited, in which the doctrine of lineal warranty, borrowed from the common law, is applied; although as a general proposition the ancient doctrine of lineal as well as collateral warranty is exploded in this country. The ground of the decision in such a case is, that by holding the covenant of an ancestor, from whom assets have descended to his heir, to be a rebutter to the claim of the heir to the land, which the ancestor has wrongfully conveyed with warranty, a circuity of-action is avoided; since the moment the demandant were to recover the land, the tenant would acquire the right to recover the value thereof from the heir, in an action upon the ancestor’s covenant of warranty.”
But it is unquestionably true that the lieir, in such a case as this, cannot be barred unless he has assets, in equal value, descended from the warranting ancestor; and here the defend-,
“Whereas, John Carson and wife, and John R. McEadden and Raney his wife, have this day executed to James Old, of McClure township, Allegheny county, a release of all the right, title, interest and claim of them, of, in and to a certain tract of land in the said reserved tract, opposite Pittsburgh, in the county of Allegheny, being part of out-lots Ros. 2Í7 and 218 in said reserved tract, and containing two acres and seventy-one and nine one-hundredths perches, the title of which was in them through their mother Raney, late Raney Bennett, without consideration whatsoever from me, and for my benefit.
“ Therefore, know all men by these presents, that I, William Carson, in consideration thereof, hereby covenant and agree to and with the said John Carson and Raney McEadden, that I shall not, nor will I by deed, mortgage, sale, judgment, devise or otherwise, prejudice or interfere with the rights of the said John Carson and Raney McEadden, as my heirs at law, as to their free and equal share in all my real estate, but the same shall remain free and uncontrolled, to be divided, amongst all my legal heirs including the said John and Raney, at my decease.
“ Witness my hand and seal this 5th day of August 1862.
“Witness: William Carson, [l.s.]
S. B. Gill.
John Dyer.”
This agreement, under the ruling of Taylor v. Mitchell, 6 Norris 520, must be taken and construed as an instrument, in the nature of a covenant to stand seised to the use of the covenantor’s heirs. At the execution of the writing, Carson had no heirs; no one is heir of the living, and until the time of his death his heirs could not be ascertained. The use was therefore contingent, and the seisin of the estate rested in William Carson during life. At his death; however, his heirs were determinable under the intestate laws. His last will and testament, which was probated after his death, was of no effect, as he had covenanted not to make a will, and those who were his heirs under the law took his realty'as heirs according to the covenant. The express terms of the covenant are, that his real estate should be divided among his “legal heirs,” and that he would in no way interfere with or divert the same from passing to them, by descent. It was their rights as heirs they sought to protect. Alienation was what was expressly provided, against; and although a consideration was expressed, the instrument ivas only sustainable as a covenant to stand seised upon the consideration of love and natural affection. The instru-. ment cannot therefore be regarded as an alienation, such as to