1 Whart. 337 | Pa. | 1836
The plaintiff alleges that the rent in question is in its nature strictly a rent-charge, and that the defendant therefore, by releasing to Jonathan Smith a part of the ground upon which, according to his own phrase, it was charged, released the whole rent. It becomes material, therefore, to inquire and see whether it be a rent-charge or not; and if not, whether it is not a rent-service; because if it be a rent-service, the defence set up against the payment of it cannot avail, at most, beyond what shall be considered a proportional part, according to the value of the land released.
According to Littleton, there are three sorts of rent; which he specifies in section 213; namely, rent-service, rent-charge, and rentseck. “ A rent-service,” he says, “ is where the tenant holdeth his land of his lord by fealty and certain rent, or by homage fealty and certain rent, or by other services and certain rent. And if rent-service at any day, that ought to be paid, be behind, the lord may distrain for that of common right.” And in section 218, he also shows how a rent-charge and a rent-seck were created before the passage of the statute quia emptores terrarum, (18th Edw. 1, stat. 1, c. 1.) He there says, “if a man seised of certain land, grant by deed poll, or his indenture, a yearly rent, to be issuing out of the same land to another in fee, or fee tail, or for term of life, &c. with a clause of distress, áre. then this is a rent-charge; and if the grant be without clause of distress, then it is a rent-seck; and idem est quod redditus siccus, for that no distress is incident unto it.” And in the 217th section, he lays it down that “ if a man by deed indented at this day, (which was after the statute quia emptores had come into operation,) maketh a gift in fee tail, the remainder over in fee; or a lease for life, the remainder over in fee, or a feoffment in fee; and by the same indenture, he reserveth to him and to his heirs a certain rent, and that if the rent be behind, it shall be lawful for him and his heirs to distrain, &c., such a rent is a rent-charge ; because such lands or tenements are charged with such distress by foree of the writing only, and not of common right.” But before the passage of the statute quia emptores, it was clearly otherwise; for in the216th section, he says, “ before that statute, if a man had ¿nade a feoffment in . fee simple by deed or without deed, yielding to him and to his heirs a certain rent, this was a rent-service, and for this he might have distrained of common right; and if there were no reservation of any rent, nor of any service, yet the feoffee held of the feoffor by the same service as the feoffor did hold over of his ‘lord next paramount.” Hence it is evident that the ground-rent in question cannot be considered a rent-charge, unless it be so by the force of the statute quia emptores; but if it shall appear, upon examination, that this statute is not and never has been in force in Pennsylvania, then it would
By the 14th section of the laws agreed on between William Penn and the freemen and planters of the province, in England, May 5th, 1682, in the year following the date of the charter to him, it was declared that all lands and goods should be liable to pay the debts of the owners, except when there was legal issue, and then, though all the goods, only one-third of the land. (See App. to Hall & Sellers, vol. Pro. L. page 4.) And on the 7th of December in the same year, by an act of the assembly of the province held at Chester, Ibid. 7, one-half of the land was made liable, in case of no issue, to the payment of debts, where it was bought before the debts were" contracted. By a subsequent aet passed the 10th of March, 1683, at Philadelphia, (Ibid. 9,) one-third of all the estate of the owner upon his death, including both real and personal, was directed to be given to his wife, another third thereof to his children equally, and the remaining third as he had directed; but in case his wife had died before him, then two-thirds to be given to his children, and the other third as he had seen fit, after payment of his debts. Also by another act passed at the same session, (Ibid.) it was enacted that one-half of the estate of a deceased intestate, without kindred, should go the governor, and the other half to the public: this latter half by an act passed afterwards, in 1684, (Ibid. 10,) was given to the public stock of the county. Again, by an act of the 1st of June,
Having now shown that the feudal rights of marriage and wardship, to secure the enjoyment of which, together with that of escheat to the chief lords, was the only inducement for passing the statute quia emptores, were taken away by the statute of 12 Car. 2, c. 34, a few years before the grant of the province to William Penn; and that the right of escheat here was established in the earliest settlement of the Province upon a totally different principle, recognizing distinctly the right of subinfeudation; that the decisions of our Courts have been at variance with its operation; and not being aware of even the shadow of evidence tending to show the contrary,
This statute then being out of the way, we have seen that according to the principles of the common law, (Littleton, sec. 216,) the rent in question is clearly a rent-service. And lord Coke, in his commentary upon this section, (Co. Lit. 143, a,) adds “ at the common law, if a man had made a feoffment in fee by parol, he might upon that feoffment have reserved a rent to him and his heirs, because it was a rent-service and a tenure thereby created.” It was called a rent-service, because it was a compensation for the services to which the land was originally liable; 3 Cruise Dig. tit. 28, Rents, c. 1, sec. 6. And at this day, the tenant (says Chief Baron Gilbert,) does the corporal service of fealty; Gilb. on Rents, 9: and therefore it is still called a rent-service, because it hath always some corporal service incident to it, which at the least is fealty. Gilb. on. Distress, 5. 1 Inst. 142, a.
The rent in question then being a rent-service and not a rent-charge, the doctrine contended for, as well as the authorities cited by the plaintiff’s counsel on the argument, showing what in law will amount to an extinguishment of the whole rent, where it is a rent-charge, and that it is not in its nature apportionable by the act of the parties, will be found to be wholly inapplicable to a rent-service. A rent-charge was considered repugnant to the principles of the feudal policy, inasmuch as it created an incumbrance upon the land of the tenant, and rendered him the less able to perform the services incident to his tenure; and being looked on as against common right, the law did not attach the remedy by distress for its recovery when in arrear, so that it is only given by virtue of the clause to that effect in the deed creating it. Gilb. on Rents, 155. Littleton, sec. 217. 3 Cruise Dig. tit. 28, Rents, ch. 1, sec. 9. In short it was regarded with disfavour by the law, and any act therefore on the part of the owner of it, which could in any way be construed to be incompatible with the future assertion of right to the same, was held to amount to a release or an extinguishment of it, without regard to the intention: as for instance, if he purchased or released a part of the land from the rent, upon which it was charged; this was held to be an entire extinguishment of his right to the whole rent; Littleton, sec. 222; 1 Inst. 147, (b); Gilb. on Rents, 152; 18 Vin. Abr. 504; Bro. tit. Apportionment, pi. 17; 3 Cruise Dig. tit. 28, Rents, ch. 3, sec. 13, 16. But a rent-service being given as a compensation for the services to which the land was originally liable under the feudal system; (3 Cruise Dig. tit. 28,ch. 1, sec. 6;) must therefore be judged of by the rules which regulated the performance of those services. ~ Accordingly Littleton lays it down expressly in section 222, “ if a man which hath a rent-service, purchase parcel of the land out of which the rent is issuing, this shall not extinguish all, but for parcel: for a rent-service in such case,
But rent-service being something given by way of retribution, to the landlord, for the land demised by him to the tenant; and the obligation of the latter to pay the rent arising from his having ea-joyed the land under a contract with his' landlord, it is reasonable that the extent of his obligation to pay should be regulated by the extent of his enjoyment; and therefore it is that if he be legally deprived of the enjoyment of part of the land demised, he shall be released from the rent only in proportion to the value of the land evicted. And in no case will an eviction of part of the demised premises, where the tenant continues to enjoy the residue thereof, discharge him from the payment of the whole rent, unless it be by the tortious act of the landlord himself, who shall forfeit all right to receive it in such case, as long as he prevents the tenant against his will, from occupying and enjoying any part of the land. Gilb. on Rents, 147. 10 Co. 128, a. 1 Roll. Abr. 235. Dyer, 56. Co. Lilt. 148, b. 1 Ventr. 277. Gilb. on Rents, 178-9.
Now let us see what the case of the plaintiff is, and how far -these principles are applicable to it. Mr. Ingersoll, the plaintiff being the tenant of a certain quantity of ground, subject to the payment of a rent-service or ground-rent, on the 30th of April, 1819, conveyed a part thereof in fee to Mr. Smith, in consideration of $2500 paid to him: thus making a division of the ground by an act of his own; and on the day following, Mr. Sergeant, who was then invested with the legal.title to the ground-rent, by his deed, in consideration of one dollar, released that part of the ground conveyed by the plaintiff to Mr. Smith, from the rent. This being the state of the case, I would ask, how can the release produce any other or greater effect towards extinguishing the rent, than if Mr. Sergeant had purchased the ground himself of the plaintiff, that Mr. Smith "bought: or had afterwards, instead of releasing to Mr. Smith, purchased the ground of him ? I cannot conceive now it is possible that it should, because the one would have been as much the wilful act of Mr. Sergeant as the other; and would have produced a union of the right to the rent, and of the right to that portion of the ground,
But it has been alleged also on the part of the plaintiff, that Mr. Reed was the* owner of both the ground and the rent, and that this union of ownership produced an extinguishment of the rent. This _ conclusion would be correct if the fact was only so; but he never ~ was invested with the legal title to the rent. And although he was the equitable owner of it, by having bought and paid for it, yet that wjas after he had sold and conveyed the ground to the plaintiff, so that had he taken the legal title for the rent to himself in his own name, instead of having it conveyed to Mr. Sergeant, the extinguish^ ment of the rent could not have been produced by the mere unity of the two estates in the same person. Again, it has been said that ~ Mr. Reed, though not the owner of the ground at the time he became the equitable owner of the rent, yet he was bound by his covenant with the plaintiff to extinguish it, and therefore the plaintiff ought, in equity at least, to have the benefit of the purchase of the rent, and to have it considered as extinguished. But this would be to set aside the purchase and the right of Mrs. Sergeant the defendant contrary to a well settled rule of law, that a bona fide purchaser for a valuable consideration of the legal estate from a trustee with- ^ out notice of the equitable right or claim shall be protected. This rule is founded in equity as well as law, because Mrs. Sergeant or „ her agent, when about to make the purchase of the ground-rent from Mr. Sergeant, seeing that he was invested with the legal title to it,
It has also been contended, that the extension of the time for redeeming the ground from the charge of the rent was an extinguishment of it. I am unable to perceive how, or upon what principle this can be so. Even as between the plaintiff and Mr. Reed this act would not seem to have been at that time inconsistent with the letter of the covenant, at least on the part of the latter, whatever may be thought of its spirit. The covenant was only to extinguish the rent within the time then allowed, or such further time as might be obtained for that purpose, and in the mean time to keep the plaintiff harmless and indemnified from the rent; thus evidently contemplating the procurement of such extension of the time for extinguishing the rent, if it should be practicable, and desired by Mr. Reed. But suppose it had been otherwise, how is it possible that it could affect Mrs. Sergeant’s title to the rent ? She was a stranger not only to the dealings between the plaintiff and Mr. Reed, but was without any knowledge whatever of the claim or interest that the latter had in the rent, or of his obligation to the former, and took the rent after having paid a fair price for it, without the least apparent infirmity about it; and appears to have quite as good a title to so much of the rent as upon a proper apportionment thereof shall be found to be equal to the value of the ground retained by the plaintiff, as he has to the ground itself.
On the part of the plaintiff, this case has also been compared to that of a debt owing by two partners in trade, or two joint, or joint and several obligors, where a release given to one by the creditor, will for ever discharge both. The law as to these cases is certainly so, (Co. Lit. 132, a.;) but this is on the ground of their joint liability •being taken away or destroyed by the release of the creditor, that the other is released, as well as the one to whom the release is executed ; because if he were to be held liable at all after the release, it could only be severally, which would be permitting the creditor without his consent, to change the nature of his liability from that of a joint, or joint and several liability, into a several liability alone: in short, to vary and change the terms of the contract. But in regard to those who are severally and not jointly liable for the payment of the same debt, it is obvious this cannot be the effect of a release made in favour of one of them alone; for never having been liable otherwise than severally, the party not embraced in the release, cannot be said to have the nature of his liability changed in the least by it; and therefore it is, that a release of one of two several obligors or covenantors, will not release the other; see Mathewson’s case, (5 Co.
The case of one of several vendees, of distinct and separate parts of a lot of land, subject at the time of the sale thereof, to the payment of a mortgage, having his part released from the mortgage'debt by the mortgagee, has been presented by the counsel for the plaintiff as analogous ; and it has been argued that the act of assembly, of the 22d of April, 1822, entitled “A supplement to an Act, entitled ‘ An Act for taking land in execution for the payment of debts,’ ” shows that anterior to the passage of it, such release would have been a release of the whole debt. In this particular, however, this act is only declaratory of what the law was before, and was so considered by this court in Kulb v. Fisher, (1 Watts, 494.) See also Hicks v. Bingham, (12 Mass. Reps. 300.) Crawford v. Crawford, (2 Watts, 339.) But in addition to this, the cases do not appear to be alike. A debt secured by a mortgage is a mere chose in action, entire in its nature, founded upon a past consideration; whereas the ground-rent here is an inheritable estate that is divisible in its nature; and the rent falling due annually, may be said to be the fruit of it, which becomes payable only in consideration of the enjoyment of the land, which is also divisible in its nature, under the original demise or conveyance thereof, reserving the rent. It is true however as Lord Chancellor Baron Gilbert, says, Gilb. on Rents, 172, that formerly it was doubted whether a rent service incident to the reversion could be apportioned by a grant of part of the reversion, ánd whether the whole rent would not in such case become extinct; as the reversion and rent incident thereto were entire in their creation, it seemed to be thought bard by some that they should be divided by the act of the landlord, and the tenant thereby be made liable to several actions and distresses for the recovery of the rent. The case however, before us, can scarcely be said to be liable to this objection, because the first division was by the act of the tenant, in selling and conveying to Mr. Smith a part of the ground. But still this doubt did not remain long, because as the Chief Baron says, it “ was too narrow and absurd to govern men’s property long; for if I make a lease of three acres, reserving three shillings rent, as I may
I have now presented my views in regard to the questions involved in this case; and the reasons which have determined me in coming to the decision adopted by the court, to wit, that the release is only an extinguishment of so much of the rent as may be equal to
Venire de novo awarded.