23 Del. 278 | Del. Super. Ct. | 1908
The case stated, omitting the caption, was in the following form, to-wit:
And now to-wit, this thirtieth day of June, A. D. 1908, it is hereby agreed by and between the plaintiffs and the defendant in the above stated case, by and through their respective counsel that the following case be stated for the opinion of the Court in the nature of a special verdict, and that said cause shall be argued at the June Term of said Court, A. D. 1908.
First, That Peter Stalcup, late of the City of Wilmington, County of New Castle and State of Delaware, deceased, in his life time made and published his last Will and Testament in writing, bearing date the twenty-fourth day of February, A. D. 1778, which after his death was duly proved and allowed on the twentieth day of April, A. D. 1778, and is of record in the office of the Register of Wills in and for New Castle County aforesaid, in Will Record L, Vol. 1, page 14, wherein and whereby among other things he devised as follows:
“It is my Will that my just debts and funeral charges be first paid and satisfied—Then I give and bequeath unto my natural daughter Sarah the two-thirds of all my real estate together with one-half of the least perishable part of my Personal estate, The one remaining third part of my real estate I give to my brother, Samuel Price.”
Second. That the said Sarah Stalcup, daughter of the said Peter Stalcup, intermarried with one Turpin Kilby.
Third. That the said Turpin Kilby and Sarah Kilby his wife by an Indenture under their hands and seals, bearing date the twelfth day of August, A. D. 1799, and recorded in the office for the recording of deeds etc., at Wilmington in and for New Castle County aforesaid, in Deed Record V, Vol. 3, page 397, granted and conveyed unto David Lummis in fee simple, all the lands, tenements and hereditaments, owned by the said Sarah Kilby in the Borough of Wilmington, aforesaid.
Fourth. That the said David Lummis by Indenture under his hand and seal, bearing date the thirteenth day of August, A. D. 1799, and recorded in the office for the recording of deeds, etc., at Wilmington, in and for New Castle County aforesaid in Deed Record V, Vol. 3, page 400, granted and conveyed unto Turpin Kilby in fee simple, all the lands, tenements and hereditaments, situate in the Borough of Wilmington aforesaid, and conveyed to the said Davis Lummis by Turpin Kilby and Sarah Kilby his wife, by the above mentioned Indenture.
Sixth. That the said Turpin Kilby, departed this life on or about the day of January A. D. 1812, after having made and published his last Will and Testament in writing, which after his death was duly proved and allowed by the Register of Wills in and for the County of Philadelphia, State of Pennsylvania, and an exemplified copy thereof is of record in the office of the Register of Wills in and for New Castle County aforesaid, in Will Record L, Vol. 3, page 132, wherein and whereby he devised all his estate to his wife Jennet Kilby in fee.
Seventh. That the said Jennet Kilby departed this life on or about the day of September A. D. 1834, after having made and published her last Will and Testament in writing, which after her death was duly proved and allowed by the Register of Wills in and for the County of Philadelphia, State of Pennsylvania, and an exemplified copy thereof is of record in the office of the Register of Wills in and for New Castle County aforesaid, in Will Record L, Vol. 3, page 135, wherein and whereby among other things she devised all her estate of every kind to her grand-children, Emily Clay, Ann Clay and Julia Frances Clay, in equal shares, and in fee simple.
Eighth. That the said Samuel Price, departed this life intestate on or about the day of A. D. 1803, leaving to survive him as his only heirs-at-law nine children, viz.: John R. Price, Susan Dutton, Hannah Mountain, Sarah Fair-lamb, Ann Mountain, Samuel A. Price, Maria Price, Dorcus Price and Elizabeth Price.
Ninth. That Gabreal Jackson by Indenture under his hand and seal bearing date the twenty-eighth day of October, A. D. 1799, and recorded in the office for the recording of deeds etc., at Wilmington, in and for New Castle County aforesaid, in Deed Record T, Vol. 2, page 217, granted and conveyed unto Jeremiah Shad the hereinafter mentioned and described land and premises, the said Indenture reciting as follows: “This Indenture made the twenty-eighth day of October in the year of our Lord one thou
Gabreal Jackson (Seal)
Signed, sealed and delivered Jacob Weldin, Isaac Stevenson
“Reed, the day of the date of the above written Indenture
Gael. Jackson.
“Witness present Jacob Weldin • Isaac Stevenson.
New Castle County ss
“The execution of the within was proven by Isaac Stevenson, Esquire one of the Witnesses thereto, in open Supreme Court, held at New Castle, for the County of New Castle of the October Term, A. D. 1799.
“In testimony whereof I have hereunto set my hand and affixed the seal of said Court, October 31st, 1799.
Jno. Wiley, Clk. Supreme Court.”
Tenth. That on the twentieth day of April A. D. 1820, Nathaniel Richards, administrator of the estate of Jeremiah Shad petitioned the Orphans’ Court of the State of Delaware, in and for New Castle County aforesaid, praying an order for the sale of the whole or so much of the real estate of the said Jeremiah Shad as would be sufficient to pay his debts, as his personal estate was not sufficient.
Eleventh. That pursuant to the said order, as will appear by reference to Orphans' Court Record L, Vol. 1, pages 4-26, the said Nathaniel Richards, administrator as aforesaid, at public sale on the twentieth day of July A. D. 1820, sold the following mentioned and described real estate of the said Jeremiah Shad, situate in the Borough of Wilmington aforesaid, to Benjamin Ferris for the sum of Seven Hundred and Fifty Dollars, Beginning at a corner of William Hemphill’s lot ( formerly Garresche’s), standing on the Easterly side of French Street at seventy-three feet and six inches broad, thence by a line of the said lot south fifty-eight degrees East one hundred feet to a post standing in the corner of the said Hemphill’s lot, thence with another line of the said lot south thirty-two degrees West twenty-five feet to
Twelfth. That the said Benjamin Ferris and wife by Indenture under their hands and seals bearing date the twenty-fifth day of August, A. D. 1823, and recorded in the office for the recording of deeds, etc., at Wilmington, in and for New Castle County aforesaid, in Deed Record U, Vol. 4, page 152, granted and conveyed the above mentioned and described land, subject to the said ground rent, to Amelia Shad in fee.
Thirteenth. That the said Amelia Shad by Indenture under her hand and seal bearing date the second day of December A. D. 1849, and recorded in the office aforesaid, in Deed Record F, Vol. 6, page 147, granted and conveyed unto Absolom Shad in fee simple, all that part of the above mentioned piece or parcel of land bounded and described as follows: Beginning at the South Easterly side of Walnut Street and the North Easterly side of Eighth Street, thence along the said side of Eighth Street south fifty-eight degrees East one hundred and sixty-seven feet four inches to a stone in an old line of Peter Stalcup’s land; thence by the said old line north thirty-six degrees East eighty-six feet ten
Fourteenth. That the said Absolom Shad departed this life on or about the day of June A. D. 1857, after having made and published his last Will and Testament in writing, which after his death was duly proved and allowed by the Register of Wills in and for the County of Kent, Dominion of Canada, and an exemplified copy thereof is of record in the office of the Register of Wills in and for New Castle County aforesaid, in Will Record M, Vol. 2, page 12, wherein and whereby among other things he authorized and empowered Eliza J. Shad the executrix therein named to sell his real estate situate in the City of Wilmington aforesaid, and convey the same to the purchaser or purchasers thereof in fee simple.
Fifteenth. That the said Eliza J. Shad executrix of the estate of Absolom, deceased, by Indenture under her hand and seal, bearing date the tenth day of September, A. D. 1858, and recorded in the office aforesaid, in Deed Record F, Vol. 7, page 152 granted and conveyed the last mentioned and described land and premises to William Whipple in fee simple.
Sixteenth. That the said William Whipple and wife by Indenture under their hands and seals, bearing date the tenth day of May A. D. 1859, and recorded in the office for the recording of deeds etc., at Wilmington, in and for New Castle County aforesaid in Deed Record E, Vol. 7, Page 401, granted and conveyed the last mentioned and described land and premises unto Henry F, Askew in fee simple.
Seventeenth. That the said Henry P. Askew and wife by Indenture under their hands and seals, bearing date the 22nd day of August A. D. 1860, and recorded in the office aforesaid, in Deed Rebord N, Vol. 7, page 64, granted and conveyed unto James Reeden in fee simple, all that part of the above mentioned piece or parcel of land, bounded and described as follows: Beginning on the Easterly side of Walnut Street at the distance of fifty-six
Eighteenth. That the said James Redden by Indenture under his hand and seal bearing date the 23d day of October A. D. 1901, and recorded in the office aforesaid, in Deed Record L, Vol. 18, page 44, granted and conveyed the last mentioned and described piece of land to Robert Rodden in fee simple.
Ninteenth. That the said Robert Rodden departed this life on or about the day of January A. D. 1906, after having made and published his last Will and Testament in writing which after his death was duly proved and allowed, and is of record in the Office of the Register of Wills, in and for New Castle County aforesaid, in Will Record Vol. page wherein and whereby among other things he authorized and empowered Patrick Dougherty and James Dougherty the executors therein named to sell the last mentioned piece of land, and grant and convey the same to the purchaser or purchasers thereof in fee simple without any liability on the part of the said purchaser or purchasers as to the application of the purchase money.
Twentieth. That there is no record of the deed to Esther White, by which the said Peter Stalcup was alleged to have created the said ground rent, nor can the said deed be found, although a diligent search has been made for the same.
Twenty-first. That the said Jennet Kilby, devisee of the said Turpin Kilby, by an instrument of writing duly executed under her hand and seal, bearing date the nineteenth day of May A. D.
Twenty-second. That there is no record of a release of the said ground rent, from the said Peter Stalcup, Sarah Kilby, devisee of the said Peter Stalcup, David Lummis, Turpin Kilby, Jennet Kilby, Benjamin Ferris, attorney in fact of the said Jennet Kilby, the devisees of the said Jennet Kilby, Samuel Price, one of the devisees of the said Peter Stalcup, the heirs-at-law of the said Samuel Price, Gabreal Jackson nor the heirs-at-law of Gabreal Jackson.
Twenty-third. That in none of the deeds conveying the said land since the deed of Benjamin Ferris to Amelia Shad, is there any mention or reference to a ground rent on the said land, and in all of the said deeds, the estate allotted, or conveyed was assumed to be a conveyance in fee simple, and no ground rent on said land was ever paid by, nor claimed from the said Robert Rodden or those under whom he claimed, for more than eighty years. The said Robert Rodden and those under whom he claimed exercised open acts of ownership, during all that time, such as selling the land and not accounting for the proceeds, and conveying the same in fee simple, paying the taxes, erecting permanent improvements, and in every way showing that they claimed to be the sole owners thereof.
Twenty-fourth. That there has been no demand for the payment of the said ground rent, nor has any payment been made thereon by any person whatever for upwards of sixty years.
Twenty-fifth, That up to the time of the death of the said Robert Rodden there had been no suit, action or prosecution of any kind brought or commenced in the Courts of the State of Delaware, touching the title of the said Robert Rodden, or those under whom he claims, of, in or to the said lot or piece of land and buildings.
Twenty-sixth. That since the death of the said Robert Rodden, no demand, claim or suit or action of any kind has
Twenty-seventh. That on the ninth day of January A. D. 1908, the said defendant purchased from the said plaintiffs the last mentioned and described piece or parcel of land for the sum of Eleven Hundred Dollars, taking a receipt in writing from the said plaintiffs for part payment of the purchase money, the following being an exact copy of said writing.
“Wilmington, Del., Jan. 9, 1908.
“Received of Andrew Flemming the sum of twenty-five dollars, being part payment of the purchase money of eleven hundred dollars for the house and lot owned by the estate of Robert Rodden situate in the City of Wilmington, on the Easterly side of Walnut Street north of Eighth Street, the balance of the purchase money to be paid when a good fee simple title, clear of all liens and encumbrances has been made.
Patrick Dougherty ) James Dougherty > Executors” Andrew Fleming )
Twenty-eighth. That on the first day of February A. D. 1908, the said Patrick Dougherty and James Dougherty, executors as aforesaid, signed and sealed a deed conveying the last mentioned and described piece or parcel of land to the said defendant in fee, and the said plaintiffs duly acknowledged the execution of the said deed in the manner required by the laws of the State of Delaware; that on the fourth day of February A. D. 1908, the said plaintiffs tendered the said deed to the said defendant and demanded of the said defendant that he pay them the said plaintiffs the balance of the said purchase money, to-wit the sum of Ten Hundred and Seventjr-five dollars.
Twenty-ninth. That upon the tender of the above mentioned deed by the said plaintiffs to the said defendant, the said defendant refused and declined to accept and receive the same,
Thirtieth. That there are no encumbrances whatever of record against the said land and premises last above mentioned and described. That the said defendant still refuses to accept the said deed of conveyance from the said plaintiffs and pay the said plaintiffs the said purchase money remaining unpaid for the above reasons solely and for no others.
If upon the above stated facts the Court shall be of the opinion that the said deed, made and executed by the said Patrick Dougherty and James Dougherty, executors as aforesaid, to the said Andrew Flemming (which deed is hereby made a part of this case stated) would, if it had been accepted by the said defendant upon tender or offer of delivery have conveyed unto the said defendant in fee simple, the last mentioned and described piece or parcel of land, freed and discharged of the above mentioned ground rent, then judgment shall be entered for the.plaintiffs ' for the sum of Ten Hundred and Seventy-five dollars, besides costs of suit. If, however upon the above stated facts, if it had been accepted by the said defendant upon tender or offer to deliver, the Court shall be of the opinion that the said deed would not have conveyed unto the said defendant in fee simple, the last mentioned and described land and premises, cleared and discharged from the said ground rent, then judgment shall be entered for the defendant for costs.
The Court made the following order: “And now to-wit
“Charles B. Lore, C. J”