4 Watts 98 | Pa. | 1835
The opinion of the Court was delivered by
—Although the counsel for the plaintiff in error have assigned, numerically, no less than twenty-seven errors, yet they have, in their argument, reduced the number to five, which they rely on as being sufficient to obtain a reversal of the judgment.
1. That the court, on the trial of the cause, erred in permitting the defendant to exhibit a title different from that mentioned in his cognizance as bailiff of John B. Newman.
%. In not instructing the jury that the judgment in the action of partition in 1830 invested the parties thereto with the legal title to their respective interests in severalty.
3. In charging the jury that if they believed the testimony of general Cadwalader, it showed that the defendant had sufficient authority as the bailiff of John B. Newman to make the distress.
4. In instructing the jury that the written letter of attorney executed by John B. Newman and others to the defendant, gave him sufficient authority to make the distress. •
5. In deciding that the plaintiff could not claim to have deducted from the amount of the rents, the taxes or any portion thereof paid by him, which had been assessed upon the lot of ground out of which the'rent issued.
In regard to the questions involved in the first three of these errors, I do not know that any thing can be added to the very able and lucid argument of the learned judge of the district court, which would tend to show more clearly than he has done that they were decided correctly. As to the first, there is really no foundation for it; because the title shown on the part of John B. Newman, for whom the defendant acted as bailiff in distraining for the rent in question, was perfectly consistent with all that was alleged in the cognizance. In that the defendant states the rent to have become due from the plaintiff by the enjoyment of the lot of ground therein described under a grant thereof from James Hamilton to Thomas Cookson, re
It has also been objected that the title produced by the defendant on the trial, showed that John B. Newman was merely a trustee, and therefore at variance with the allegation contained in the cognizance. Substantially, the allegation in the cognizance is, that John B. Newman, as assignee, not meaning necessarily the immediate assignee of James Hamilton’s right reserved in his deed of grant to Thomas Cookson of the lot of ground, was entitled to demand and receive the rent therein mentioned, which had accrued from the enjoyment of the lot by the plaintiff as assignee of Cookson, under the deed of grant from Hamilton to him.. In short, that John B. Newman was legally entitled to demand and receive the rent as it became due; and if not paid, had a right to distrain for it. Now, although John B. Newman, by the terms of the deed of the 26th of August 1818, would be considered and treated in equity as a trustee, yet at law he must be considered the legal owner of the rent, and as having a right to receive and to enforce the payment thereof to him, when due, by any lawful means that he pleases to resort to. The rents being granted to him in fee for the use of himself, his heirs and assigns, to receive the same in trust for the benefit of others named in the deed, the statute transferring uses into possession does not operate on the second or ulterior use. At law it is considered repugnant to the first use, which is in favour of Newman and his heirs; and it is in equity only that he will be considered a trustee. This second use, then, not being executed by the statute, he had an unquestionable right to distrain for the rent: so that in a legal point of view, the title of Newman to the rent, as disclosed by the evidence, accorded perfectly with all that was alleged in the conusance. We
As to the second, we think the direction given by the district court on the effect of the action of partition, and the judgment therein, was correct. The partition was intended to operate upon the equitable interests of the parties concerned, and not upon the legal title and rights in the estate.
In regard to the third point complained of as error, we also think that the instruction of the judge to the jury was perfectly correct in every particular. He told them, that if they believed general Cadwalader, his testimony established, most clearly, a parol authority given by Newman to the defendant to make the distress; and that such authority was all-sufficient. In this he is fully sustained by Lamb v. Mills, 4 Mod. 378; Trevillian v. Pine, 11 Mod. 112; Manby v. Long, 3 Lev. 107; Br., Bailie, pl. 2; Ibid. Traverse, pl. 3; 1 Bac. Abr., Bailiff, 366 (C.); Anonymous, 1 Salk. 191.
As to the fourth matter in which it is alleged that the court erred. It is wholly immaterial whether his honour the judge be correct or not in his construction of the letter of attorney, because it was not necessary, in the slightest possible degree, for the defence of the defendant. His authority to make the distress was most amply and decisively established without it, by the testimony of general Cadwalader, which went to the jury without the least attempt on the part of the plaintiff to disprove it, or to detract from its credit in any way whatever. Hence the jury were bound to believe it, and to give to it legal efficacy: and liad they done otherwise, it would have been the duty of the court to have granted a new trial.
If, however, the authority of the defendant to make the distress for the whole of the rent due from the plaintiff had not been thus established, I am inclined to think that the letter of attorney would not have been sufficient to authorize it. From its tenor and purport it appears to have been given for the purpose of enabling the defendant to receive and collect that portion only of the rent due which was coming to Louis O’Bierne and wife, and not that coming to the other cestuis que trust.
The question embraced in the fifth point, or last error insisted on in the argument, presents no difficulty whatever. The counsel for the plaintiff, however, for the purpose of sustaining their proposition in relation to it, have referred us to the sixth section of the act of the 3d of April 1804, making every tenant who occupies or possesses lands or tenements liable to pay all taxes becoming due on them during his occupancy or possession; arid giving him a right to recover whatever he may pay in discharge thereof, from his landlord, by action of debt; or at his election to defalcate the same from the payment of the rent due to his landlord. This section of the act of 1804 is clearly not applicable to taxes assessed upon ground rents, but to taxes assessed upon lands. It must be observed that they are made separate and distinct subjects of taxation by the eighth section of the
The counsel of the plaintiff have cited in support of their proposition on this last point, the cases of Brewsler v. Kitchin, 1 Salk. 198; 2 Salk. 615; S. C., 1 Lord Raym. 317; Peart v. Phipps, 4 Yeates 386; and Sandwith v. Desilver, 1 Browne’s Rep. 221: but they have no direct bearing upon it. The question in Brewster v. Kitchin, was as to the extent of a covenant made by the tenant of the land, for paying a rent charge c< clear of any taxes on the land or said rent,” 5 Mod. 369; and held that he was bound to pay the taxes on both, according to the terms of his covenant. The taxes in Peart v. Phipps were taxes assessed upon the ground rent and not upon the lot, which the grantee of t'he lot had covenanted to pay “ clear of all charges and assessments whatever; and ruled that by the terms of his covenant he was bound to-pay them. But it is clear, that if he had not bound himself by his covenant to pay these taxes, the owner of the ground rent would have been liable for them. The question in Sandwith v. Desilver appears to have been nearly the same with that in Peart v. Phipps, and to have been decided in the same way.
Judgment affirmed.