97 Pa. 251 | Pa. | 1881
delivered the opinion of the court, March 21st 1881.
This proceeding, although in form an action at law, is in substance a bill for specific performance, and must be so treated. The cáse stated expressly provides, that the court shall “ exercise as full equitable powers as if a bill in equity had been filed for specific performance of the contract of sale.”
The case briefly stated is this: The defendant purchased of the plaintiffs, at public auction, a ground-rent of $100 per year (par $1666.66), for the price or sum of $1600. The defendant’s conyeyancer procured searches against the premises out of which the rent issued, and found the same encumbered by municipal claims and taxes to the extent of $1684.79, and for this reason refused to take title to the ground-rent. The rent itself was not encumbered, but defendant alleges that the liens referred to, together with the ground-rent, equal if they do not exceed the value of the land.
A decree for specific performance is of grace, not of right. It will never be made in favor of a vendor, unless he is able to offer a title marketable beyond a reasonable doubt, nor against a vendee where he is able to show any circumstances which would make it unconscionable to do so. We need not review the decisions upon this subject. It is sufficient to refer to Colwell v. Hamilton, 10 Watts 413; Bumberger v. Clippinger, 5 W. & S. 311; Dalzell v. Crawford, 1 Pars. Eq. Cases 37; Nicol v. Carr, 11 Casey 381; Speakman v. Forepaugh, 8 Wright 363; Swain v. Fidelity Ins. Co., 4 P. F. Smith 455; Doebler's Appeal, 14 Id. 9; Swayne v. Lyon, 17 Id. 436.
It was urged, however, that the present contention is not within the cases cited, for the reason that the rule referred to applies only to a marketable title, while the defendant’s objection is not to the title to the ground-rent, bdt to that of the ground out of which the
A ground-rent is an estate carved out of the land. The owner of the one has an estate in the rent; the other an estate in the land. Both are real estate, and subject alike to be encumbered by mortgage and judgment. While we have these two separate estates, they are, at the same time, inseparably connected. The rent issues out of the land, and the owner of the latter holds his estate subject to the rent. It needs but this brief statement of the nature of a ground-rent to show that the title thereto is indissolubly connected with the title of the land itself. To make the title to such rent marketable, the title to the land out of which it is reserved must be marketable, otherwise we would have a rent reserved out of nothing.
What are the facts here ? The land is heavily encumbered by municipal claims and taxes, which, by Act of February 3d 1824, Pamph. L. 18, are made prior to all other liens and encumbrances. A judicial sale for the arrears of ground-rent, or upon any other encumbrance, will not discharge the lien of the taxes, unless the property brings enough to pay them. See Act of March 11th 1846, Pamph. L. 114. It is manifest, therefore, that this ground-rent is worthless, or its value greatly impaired by reason of the liens upon the land out of which it issues. These liens affect the title to the land, and whatever impairs the title to the land necessarily impairs the title to a rent issuing out of the land.
If the title to the land fails, the title to the rent falls with it. I presume it will be conceded that if this ground-rent had been subject to a prior mortgage on the land equal to the value of the latter, the title to the rent would have been worthless. In what respect does such case differ from the one in hand ? In either event, the rent is subject to a paramount lien upon the thing out of which it issues, and which necessarily sweeps away the title to both. This, of course, has no reference to liens upon the land which do not affect the rent.
We are of opinion the court below committed no error in entering judgment for the defendant upon the case stated.
Judgment affirmed.
