8 Pa. Super. 133 | Pa. Super. Ct. | 1898
Opinion by
The lot in suit was part of a larger tract formerly owned by Joseph Davis. By a deed dated May 12, 1846, he conveyed, in general terms, all his lands situated in the townships of Hanover and Wilkes-Barre, as well as all his personal property and choses in action, to his brother John Davis, his heirs and assigns; John to take immediate possession, “subject nevertheless, and on this express condition, reservation and limitation : that he, the said John Davis, his heirs and assigns, out of the said property and out of his own property and means, provide me in all time to come, a good, sufficient, comfortable and reasonable support in sickness and in health, according to the circumstances that I am now in and may be in hereafter, for and during my natural life; but if the said John Davis, his heirs and assigns shall' neglect this and not fulfill and maintain these conditions in a full, fair and liberal manner, then the estate hereby contracted and conveyed shall cease and return to me and my heirs.” The deed from Joseph to John was proved March 1, 1847, by one witness, who made affidavit to its execution before a justice of the peace, and thereupon it was recorded.
On the trial the plaintiff offered the record of this deed. It was objected to because, (1) its execution was not sufficiently proved, it not having been acknowledged by the grantor; (2) it was no evidence of title in the grantee until it was shown that the covenants and conditions had been performed. The court overruled the first objection and sustained the second. The plaintiff then offered to make proof of performance of the conditions of the deed by the grantee John Davis, and, with this understanding, the deed was received. The only witness called for this purpose was the plaintiff. He testified that he is a son of John Davis the grantee and a nephew of Joseph the grantor. His testimony to the effect that his father said he had contributed toward the support of Joseph, and toward the costs of his defense on a charge of homicide,
It seems clear from the authorities that in transactions intended to secure to the grantor a competent support during his life, a deed, no matter how strong its'words in the present tense, will not pass the estate, if from other parts of the instrument the intention appears to be otherwise: Williams v. Bentley, 27 Pa. 294; Odgen v. Brown, 33 Pa. 247; Driesbach v. Serfass, 126 Pa. 32, and cases cited by Williams, J.; Ringrose v. Ringrose, 170 Pa. 593. Those cases also hold that such conveyances are to be regarded as executory contracts, subject to the rules of equity as to their construction and enforcement. The terms of the instrument in the present case make the conveyance expressly subject to the condition of reasonable support of the grantor during life, and in default of its performance “in a full, fair and liberal manner” the estate conveyed'.to cease and return to the grantor and his heirs. In this respect the present conveyance is more full and explicit than those in Driesbach v. Serfass and Ringrose v. Ringrose.
In Driesbach v. Serfass, the grantor conveyed the premises in dispute in terms which, taken by themselves, were technically adequate to vest a present estate in fee simple; but all the provisions of the conveyance, together with the object and nature of the transaction, were considered in its interpretation. The purpose of the parties, as thus ascertained, was held to
In the present case there was absolutely no competent evidence to show performance of the conditions and stipulations of the deed. There was nothing to show any attempt to enforce it by the parties during their lifetime, although some twenty-five years had elapsed between its execution and the death of the grantee. This action was brought by one of the children of the grantee some twenty-five years after his father’s death and about forty-two years after the execution of the agreement which he now seeks to enforce. Joseph Davis acquired the fee in 1828, and in general terms devised all his property to his nephew Samuel Wildrick. With his will, forming a link of a continuous chain, the title was traceable by record from 1828 until the commencement of this suit. So far as the records show or the evidence discloses the parties never acted under the agreement of 1846, but disregarded all rights and duties growing out of it. It was not shown that Joseph Davis had other property, and, under the facts, it may be presumed that the devise to his nephew embraced the land in dispute. His nephew sold the tract to other parties on the strength of this devise, and the titles of the present holders are based upon it. The claims of these innocent purchasers add much to the justice of the application of equitable principles in the disposition of this case. Fortunately these principles can be applied within recognized equitable jurisdiction and established practice. Under che principles already stated, the burden of proving perform
The recording acts add nothing to a deed which the original instrument lacks, and when the effect of a recorded deed, as evidence in a case, depends upon performance of its covenants, this must be shown. Its record in the recorder’s office adds nothing to its intrinsic efficacy as an instrument of evidence; it is merely notice to the world of a claim of title which must be taken for what it is worth.
The conclusion thus reached is in harmony with Fritz v. Menges, 179 Pa. 122, and, considered in the light of their differing facts, the cases emphasize the same principle.
Judgment affirmed.