Kenege v. Elliott

9 Watts 258 | Pa. | 1840

The opinion of the Court was delivered by

Sergeant, J.

It would certainly be carrying the doctrine of equitable ejectment to an unwarrantable extreme, to apply it to a case like the present. The plaintiff has parted altogether with the lot by a conveyance in fee, and has neither a legal nor equitable title to the lot, but both are in the defendant by his own showing. Giving the most liberal construction to the conveyances under which the plaintiff holds, he is no more than assignee of the ground rent of 1 dollar and 33 cents per annum, issuing out of the premises which was created by the deed of Peebles to Williamson. His claim is to the rent, and his remedy is for that only. The remedy of ejectment to recover a ground rent is allowed only where a right of re-entry is expressly reserved by the parties, and clauses to this effect are common. But here there is no such right reserved; there is nothing reserved but the rent, and for the recovery of that the plaintiff must l’esort to the usual remedies for the recovery of rent in arrear. A ground rent reserved upon a conveyance in fee is, in Pennsylvania, a rent service, and to all rent services the right of distress is incident of common right. The assignee of such rent has the same right of distress, there being no reversion in the assignor capable of being retained by him so as to affect the right of distress by the assigned}. If our tenure be socage, as I am inclined to think it is, then by the conveyance of the rent the fealty passes, and to fealty distress is inseparably incident. Co. Lit. 151. If it be not so, yet all the assignor has passes, and I think the same result follows. Perhaps also there may be other remedies for the recovery of the rent if the defendant is liable for it.

The case of Bear v. Whisler, 3 Watts 144, has no resemblance to the present. That decides no more than that the vendor may retain a lien for the purchase-money, notwithstanding'!^ has made a deed; on the face of the deed itself it appears that it was not an absolute deed, but in the nature of an article of agreement, by which the purchaser was to take the land, subject to the payment of the purchase-money, and that in such cases the vendor may still sustain ejectment to enforce payment of the purchase money.

We give no opinion on the other points of the case. We simply decide that this is not a case in which, even if the rent be in arrear, and the defendant is bound to pay it to the plaintiff, ejectment is' not the proper remedy to recover it.

Judgment affirmed.