Horton v. Cook

10 Watts 124 | Pa. | 1840

The opinion of the court was delivered by

Gibson, C. J.

If the grantor was personally bound for payment of the annuity, the promise to pay in consideration of forbearance to sue his executors, equally binds the défendant; and that is not controverted. It is urged, however, that what has been called an annuity, was no more than an assignment of a portion of the interest accruing on the bonds and mortgage. But the grant of an annuity in terms, out of whatever payable, prima facie binds the person; and the implication from it of a covenant to pay, can be rebutted only by a plain intent apparent on the face of the instrument, that the annuitant should resort only to a specific fund. An annuity is an annual duty charged upon the person of the grantor only; Co. Lit. 441, b.; but the grantee of a rent charge, which is not a pure annuity, may charge the land by a distress or an assise, or the person of the grantor by a writ of annuity at his election. Lit. sect. 219. Now the grant, in this case, is stronger to charge the person, than the grant of a rent charge; for the subject of it is designated as an annuity in terms, and ex vi termini, the word imports the grant of a sum in gross, “ so;.that no freehold be charged therewith;” Terms de Ley 44: that is, as annuity; for it may certainly be charged on land in the shape of a rent. If it issue out of land, as by the modern practice it often does, the annuitant may make it personal or real, at his option; and though he may have a writ of annuity after a distress, he may do so only where he has not avowed in replevin, or brought an assise, which also is an election of record. But that the word annuity is the proper one to charge the person, is further manifest from the fact, that no writ of annuity lies for a rent created by reservation. It is said in the Law Dictionary, verbo Annuity, that there are few modern grants of annuities without a covenant for payment, express or implied; and that an action of covenant is usually brought instead of a writ of annuity, which is much out of use. What, then, is there to rebut the implication of such a covenant on the face of this instrument? The annuitant was not a beneficiary, but a purchaser; and the interpretation is to be as favourable to her as the words will bear. Payment was directed to be made out of the produce of purchase-money, secured by bond and mortgage, an adequate portion of the principal being left in the mortgagor’s hands, or'agreed to be put out at interest by the grantor, should it be paid over to him. If the grant then were construed to be only an assignment of the fund, it is evident that the grantee’s security would be proportionately decreased; and it follows not that the designation of a particular fund for payment, has the effect of discharging the grantor’s responsibility. Such is the case of a rent charge, and such also was the case in 1 Roll. Abr. 227, of an annuity receivable out of a particular bag of money, or out of the grantor’s coffers, or from a stranger. Besides, it is difficult to say what remedy this annuitant could have had against the mortgagor; or how,in a suit o,n the bonds, she could have recovered in the name of the obligee, just so much of the interest as would satisfy her annuity and no more; or how, in the event of the obligor’s insolvency, which has since happened, she could have had repeated recourse to the land which has since been sold on the mortgage, and ceased to be a security for her demand. A construction that would expose her to the risk of such events, without recourse to any guaranty, would be plainly unreasonable and unjust. But that to find the means of satisfaction was to be the grantor’s business, is evident from his covenant to put the principal at interest for her use, when it should be paid into his hands. His being the hand to receive and pay out, she could look to no other. He might have put the money out on merely personal security, and not even of her choosing; on which it is unreasonable to suppose that she consented to rely. The grantor, then, having used apt words to charge his person, and having used none else to restrain their natural and technical effect, we must take it that he consented to be personally bound; and, consequently, that there was a sufficient consideration for the defendant’s promise.

Judgment affirmed.