48 Pa. Super. 1 | Pa. Super. Ct. | 1911
Lead Opinion
Opinion by
In this action of assumpsit sur ground rent deed issue was joined and the case was tried before the court and a jury. At the trial the learned counsel for the respective parties agreed upon the facts and the court below held as a matter of law that the plaintiff was entitled to recover and directed the jury to find a verdict in favor of the plaintiff for the full amount of her claim. No question is raised as to the amount of the verdict, if the plaintiff is entitled to recover at all.
The defendant’s counsel asked the court for a binding instruction in favor of the defendant and this being refused, counsel for defendant excepted and moved the court for judgment non obstante veredicto under the Act of Assembly of April 22, 1905, P. L. 286. The court having refused this motion and directed judgment on the verdict, the defendant’s counsel excepted, and the court granted the exception and sealed a bill for the defendant.
Inasmuch as the counsel do not dispute as to the facts, we have adopted the defendant’s counsel’s statement of them, as given in their history of the case, and we have compared their statement with that of the plaintiff’s learned counsel and we discover no material difference in the two statements. Our reason for adopting defendant’s counsel’s statement of facts is that we do not agree with their conclusions of law and therefore desire to
“On June 16, 1849, Eliza Roberts and John Roberts, brother and sister, joined in the execution of a deed whereby Eliza conveyed to John the premises 314 N. 15th street, reserving a ground rent of $45 per annum. Eliza died May 15, 1893. John died December 10, 1899. The deed of June 16, 1849, was not recorded by either John or Eliza, but after John’s death it was recorded by his administrator on January 18, 1900. From the time of the creation of the ground rent until it was recorded in 1900, after the death of both parties to it, the ground rent was never paid. During those fifty years no payment, claim or demand for the ground rent was made nor was there any declaration or acknowledgment of its existence. By her will, dated November 20, 1848, Eliza devised her real estate to her brother John for life, and the remainder to the children of John and of another brother Henry. John died intestate, leaving to survive him a son, John Roberts, Jr., and Stella, the daughter of a deceased son, George W. Roberts. In 1900 the remainder-men under the will of Eliza Roberts instituted proceedings in the Orphans’ Court in partition to dispose of the ground rents devised to them by Eliza, and included among these ground rents the one reserved out of 314 N. 15th street, by the deed of June 16, Í849. These ground rents were all purchased by Margaret Murphy, the present plaintiff, who took title by deed dated August 3, 1900. Title to the ground rents was insured by the Land Title & Trust Company, which in March, 1900, obtained from John Roberts, Jr., an affidavit wherein he swore that his father had died seized of 314 N. 15th street subject to the payment of an annual ground rent of $45, and that that property had descended under the intestate laws to him and his niece Stella, ‘Who will pay said ground rent regularly so long as they own said real estate.’
“John Roberts, Jr., and Stella Roberts paid the ground
"Gelston believing that the plaintiff held a redeemable ground rent upon the property on January 24, 1907, tendered to the plaintiff $795.68, in payment of the principal and arrearages of the ground rent the plaintiff claimed to hold and requested that the plaintiff accept the tender and extinguish the ground rent. This tender was refused.
“On August 28, 1908, Gelston conveyed the property to Freda B. Green, the present owner and defendant, but the deed contained no recital or reference to the ground rent in any shape or form.
“Freda B. Green maintained the tender made by Gel-ston and subsequently to the institution of this suit paid to the plaintiff the arrearages of the ground rent that accrued prior to the date of the tender made by Gelston. At the trial of the case she brought into court the capital of the ground rent of $750.
“At the trial in the lower court the above facts were all admitted. The appellant then contended that she was entitled to binding instructions in her favor for the following reason:
“ ‘1. By reason of nonpayment of the ground rent from the time of its creation in 1849 until 1900, the ground rent was extinguished under the Act of April 27, 1855, P. L. 368, section 7.
“ ‘2. No right to collect ground rent arose by reason of its payment for five years, from 1900 to 1905.
“ '3. Any right the plaintiff might have to recover ground rent arose and was created no earlier than 1900, and hence would be subject to the Act of June 24, 1885, P. L. 161, sec. 1, prohibiting the creation or reservation of irredeemable ground rents; and inasmuch as in Janu
To the positions above taken by the learned counsel for the appellant counsel for appellee summarize their reply as follows:
“1. That the statute of 1855, as interpreted by the subsequent Acts of the Legislature, requires that, to prevent a recovery on a ground rent, nonpayment for a period of twenty-one years next preceding the action must be shown.
“2. That this construction of the Act has been uniformly adopted by counsel in all reported cases involving the construction of the Act, and forms the basis of all decisions of the Courts of Appeal of this Commonwealth, in such cases.
“3. That there is no such analogy between the statute of limitations relative to estates in land entitling the owner to possession and the statutes of limitations affecting ground rents which would make the decisions of the courts of this Commonwealth relative to the former in any way applicable to the latter; and
“4. That the appellant being in privity with those for whose benefit the ground rent was sold, and who procured its sale upon the representation that it was a valid and subsisting rent, should not now, in equity and good conscience, be permitted to repudiate its validity.”
The land in question was conveyed to William Gelston about six years after the recording of the ground rent deed and the present appellant did not acquire her title from Gelston for eight years after the said ground rent deed was recorded. The deed to Gelston was made subject to the payment of the ground rent created by the deed of June 16,1849. Now, Gelston being the immediate grantor of appellant, it is difficult to see why. she does not
Appellee avers, and it is admitted, that the ground rent was regularly received by her in semiannual payments from April 3, 1900, down to and including the year 1905. This suit was commenced March 29, 1909, for the recovery of payments of ground rent which became due, on the face of the deed on July 1, 1906, down to and including January 1, 1909, with interest on each of said installments from the date on which it became due. It thus appears that the appellee only claimed and recovered verdict and judgment for ground rent accruing subsequent to the payment of ground rent made from April 3, 1900, down to and including the year 1905.
Our question then is a narrow one, — Can the appellant avoid the liability of her property for the ground rent for which the court below granted judgment because a period of about fifty years elapsed from 1849, when the ground rent was created by deed, till 1900, when no ground rent was paid and no claim or demand was made on account
We here call attention to the fact that the ground rent in question was sold to the appellee on representation and affidavit made by John Roberts, the younger, that his father, John Roberts, died seized of the premises subject to the ground rent, that the same had descended to the deponent and his niece, Stella Roberts, 'who will pay said ground rent regularly so long as they own said real estate’ and that the affidavit was made in order to procure insurance of the title to the ground rent. Thereafter the ground rent was paid by John Roberts, the younger, and his niece as above stated, for the years 1900 to 1905, inclusive, and by Gelston, who purchased the property from them, expressly subject to the ground rent, for the first six months of the year 1906.
The appellant relies on the Act of April 27, 1855, P. L. 368, to sustain her position that a release or extinguishment of the ground rent was to be presumed, and, therefore, the right of action was barred. The portion of sec. 7 of the act material here is as follows: "That in all eases where no payment, claim or demand shall have been made on account of, or for any ground rent, annuity or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, subject to such ground rent, annuity or charge, a release or extinguishment thereof shall be presumed, and such ground rent, annuity or charge shall thereafter be irrecoverable.” We find that several supplementary acts affecting the same general subject-matter have since
“If there were any doubt as to the meaning of the original Act, the language of the supplementary Acts of 1897 and 1909, both of which, .... contemplate that the demand, payment or acknowledgment shall be made within twenty-one years preceding suit, makes it obvious that the legislative intent is that the twenty-one years shall be counted back from the date of the suit and not at random any time during the existence of the charge
We have quoted quite liberally from the printed argument of counsel for appellee because the views therein expressed are in harmony with our opinion of the law as applicable to the situation of the appellant in this case. The learned counsel for appellant after taking the position that the ground rent was extinguished by reason of its nonpayment from 1849 to 1900, under the Act of April 27, 1855, P. L. 368, next takes the position that no right to collect ground rent arose by reason of its payment from 1900 to 1905, and their next position is that if any right to recover ground rent arose it was created no earlier than 1900, and hence would be subject to the Act of June 24, 1885, P. L. 161, prohibiting the creation or reservation of irredeemable ground rents. We do not agree with the counsel that the payment of the ground rent from 1900 to 1905, created a new and redeemable ground rent and, therefore, we do not feel called upon to discuss at length the act of 1885. We shall hereafter attempt to show that on the facts of this case the appellant is not in position to go back of twenty-one years from the institution of the
In Hiester v. Shaeffer, 45 Pa. 537, it appears in the opinion by Reed, J., that a claim or demand had been made and judgment had been obtained at a date within twenty-one years prior to the bringing of that suit against the defendant upon the ground rent, and it was held that this took the case out of the bar of the act of 1855; although, as appears from the report, that judgment was for thirty-five years arrears of ground rent and no other demand than by the suit in which the judgment had been obtained, had ever been made.
Korn v. Browne, 64 Pa. 55, was an action of covenant for ground rent by John C. Browne against John Collins, with notice to Henry Korn, terre-tenant. The writ was issued April 14, 1868, upon a ground rent reserved by a deed dated January 30, 1834. The defendant gave in evidence a notice to plaintiff that on the trial he would be called on to prove the payment by defendant, or anyone under him, of ground rent within twenty-one years preceding the suit. He also gave in evidence a deed of the ground rent to himself, dated February 26, 1840; also sale by the sheriff of a lot out of which the ground rent issued; the deed having been acknowledged May 14, 1859, and conveyance by the sheriff’s vendee to him April 19, 1861. Upon the facts of that case the Supreme Court held that the court below erred in holding that the act of 1855 did not apply to this case and in the conclusion of the opinion we find this paragraph: “We think it did, and as the plaintiff did not prove any claim or demand or payment, or any declaration or acknowledgment of the existence of the ground rent within twenty-one years,
Biddle v. Hooven, 120 Pa. 221, was an action of covenant sur ground rent deed brought to December term, 1885, upon a ground rent reserved October 2, 1845. That case was an appeal to the Supreme Court from a judgment overruling a demurrer to a special plea and entering judgment for the defendant. The special plea was that "no payment, claim or demand has been made on account of or for the said yearly ground rent for twenty-one years prior to the commencement of said suit, and no declaration or acknowledgment of the existence thereof has been made within that period by the owner of the premises subject to said ground rent,” etc. In the opinion of the Supreme Court, by Mr. Justice Paxson, we find the following: "I shall not attempt to show that statutes of limitation, which affect the remedy merely, are constitutional. There are some few legal principles which may be regarded as settled, and this is one of them. If, therefore, the Act of 1855 merely operates to deprive the owner of a remedy for the collection of his ground rent after the expiration of twenty-one years from any suit, claim, or demand for the same, we cannot see any sufficient reason for holding that the Act is unconstitutional. . . . The most that can be made of this language is that it makes the ground rent irrecoverable after the statutory period. After the lapse of twenty years mortgages, bonds, judgments, arrears of ground rent, in fact all specialties, are presumed to be paid. But this is a presumption of fact liable to be rebutted; not a legal presumption, as was erroneously stated in Korn v. Browne, 46 Pa. 55. The
In Wingett’s Appeal, 122 Pa. 486, Mr. Justice Williams, in delivering the opinion of the Supreme Court, used the following language: “What, then, was the effect of the Act of 1855 upon the legatees? Did it put the burden of showing the circumstances necessary to relieve against the bar of the Act upon them? This is answered by a glance at the Act itself. It provides that anyone claiming the payment of any ground rent, annuity, or other charge upon real estate, which has been due for twenty-one years, must show some 'payment, claim, or demand,’ on account of the alleged lien, or some 'declaration or acknowledgment of the existence thereof,’ made within the twenty-one years by the owner of the premises, subject to such charge.” Made within twenty-one years of what date? Obviously the answer is, within twenty-one years of the bringing of the suit. Now in the present case the plaintiff was able to show payments of the ground rent annually for a period of six years well within the statutory period counting back from the date of the commencement of this action.
The case of Wallace et al. v. Fourth United Presbyterian Church of Pittsburg was twice before the Supreme Court and is reported in 111 Pa. 164 and 152 Pa. 258. The first appeal involved only a question as to the title to the ground rent. The second appeal was on an action of covenant brought to June term, 1885, upon a ground rent reserved prior to 1826. At that time a life estate in the rent became vested in Jane Wallace. The rent was
In Meek’s Est., 161 Pa. 360, there was a legacy charged upon land by will in favor of a widow in lieu of dower and she had been told in 1860, by the testator’s devisees, that they would pay her nothing more unless compelled by law. She did nothing to enforce her claim for thirty-one years and the court below on an auditor’s report held that her claim was barred by the act of 1855. It is manifest that the thirty-one years in this case was the period of time between the last payment to her and the presentation of her claim in 1891. The Supreme Court affirmed the decision of the lower court.
In Fessenden’s Est., Tyler’s App., 170 Pa. 631, it was held as stated in the syllabus: “Where land is devised subject to a charge created upon it by will, and the devisee subsequently sells the land, but continues to pay the charge in exoneration of his vendee, the limitation under the Acts of April 27, 1855, P. L. 368, and February 26, 1869, P. L. 3, providing that annuities and charges upon land shall be extinguished if no demand is made within
In Barber v. Mullen, 176 Pa. 331, an action of assump-sit was brought to June term, 1890, on a ground rent reserved in a deed dated March 1, 1855. In the opinion of the Supreme Court it is stated that: “There has been no payment of the ground rent, or on account of it, since its reservation in 1855. . . . After 1868, and before the commencement of this suit, no claim or demand was made upon Wood, Relay or Mullen for or on account of the ground rent, nor any declaration or acknowledgment made by either of them of the existence of it.” The real point decided in this case was that a demand made upon the covenantor after he has parted with the title to the fee was not sufficient to prevent the running of the statute. The court below gave binding instructions for the defendant, and the Supreme Court affirmed the judgment.
Heiss v. Banister, Peters’ App., 176 Pa. 337, was an action of assumpsit sur ground rent deed brought to March term, 1892, in which the terre-tenant (appellant) had not been joined as a party defendant. Her first knowledge of the proceeding was after judgment had been obtained and when the sheriff advertised the selling of her property. She immediately filed a petition to open the judgment, averring the foregoing facts, and also, first, that the plaintiff only owned one-half of the rent at most, but had taken judgment for the whole, and, second, that, as stated in the opinion of the Supreme Court “that for twenty-five years preceding the filing of the petition no payment, claim or demand had been made for any ground rent under the said deed, nor any declaration or acknowledgment of the existence thereof had been made during that period by any of the owners of the premises. The petition was sworn to and subscribed by the appellant and it contained an assertion of her ability to prove its
Clay v. Iseminger was twice before the Supreme Court and is reported in 187 Pa. 108 and 190 Pa. 580. It was also reported more fully, on appeal to the Supreme Court of the United States under the name of Wilson v. Ise-minger, 185 U. S. 55. It first came up on a rule for judgment for want of a sufficient affidavit of defense. The rule had been discharged and this was affirmed in the Supreme Court in an opinion by Mr. Justice Fell in which he says: “In the affidavit of defense it was averred that no payment, claim or demand for the rent had been made by anyone for more than twenty-one years and that within that period of time no declaration or acknowledgment of the existence of the rent had been made by anyone owning the premises.” Upon a subsequent trial, as appears from the report in 190 Pa. 580, there was no attempt to prove any acknowledgment or payment of the ground rent subsequent to 1859. The question argued and decided was the constitutionality of the act of 1855. In the report of the case in 185 U. S. 55, in an interesting opinion by Mr. Justice Shiras, it is said: “The theory of this remedial act is that upon which all statutes of limitation are based, — -a presumption that, after a long lapse of time, without assertion, 'a claim, whether for money or for an interest in land, is presumed to have been paid or released. . . . Bonds, even when secured by mortgages upon land, mortgages themselves, merchant’s accounts, legacies, judgments, promissory notes, and all evidences of debt, have universally been treated as lawfully within the reach of legislative power exercised by the Dassage of statutes of limitation. ... We are un
Clay v. McCreanor, 9 Pa. Superior Ct. 433, was a case stated in an action of assumpsit sur ground rent deed, from which it appeared that, “no payment, claim or demand has been-made on account of, or for, any ground rent for said premises for twenty-one years prior to the bringing of this suit.” But that in a deed executed within that period, although subsequent to the Act of June 12, 1878, P. L. 205, the premises were conveyed under and subject to the payment of the rent. We held that such recital is not an acknowledgment made to the ground landlord, and works no estoppel against the vendee or his successor in title from pleading the statute in a suit brought years afterward.
Cadwalader v. Springsteen, 36 Pa. Superior Ct. 134, was a feigned issue under the Act of June 14, 1897, P. L. 149, brought to December term, 1904, to determine if a ground rent was extinguished by presumption of law. We held, in an opinion by our Brother Head, in substance, that the mere entry of the landlord upon unoccupied land for the purpose of making a demand within twenty-one years prior to the suit, where there was a record owner of the land, and no attempt to find or serve him was shown, plus a judgment upon the ground rent obtained more than twenty-one years before the suit was brought, was not sufficient to toll the statute of 1855. In the course of the opinion Judge Head said: “It would still not be the demand contemplated by the statute, viz.: one made within twenty-one years before the right was sought to be enforced.” Here it clearly appears that this court then thought that the demand or payment must be made within twenty-one years of the commencement of the action.
The above review of the authorities leads us to the
Appellant’s counsel argue with much ability that a ground rent is real estate; and they would from this apparently reach the conclusion that the reasoning relative to statutes of limitation affecting real estate should be applied to the statutes of limitation affecting ground rents. Our reply to this- contention is that, if a ground rent' in real estate is real estate and indistinguishable from other estates in land governed by the statutes of limitation of March 26, 1785, 2 Sm. Laws 299 (2 Stewart’s Purdon, 2268), there was no need of the subsequent statutes relative to ground rents upon which appellant seems to base her right. These statutes show the existence in the mind of the legislature of a difference between ground rents and other estates in land. The Act of March 26, 1785, 2 Sm. Laws 299, sec. 2, provides: “That, from henceforth, no person or persons whatsoever shall make entry into any manors, lands, tenements or hereditaments, after the expiration of twenty-one years next after his, her or their right or title to the same first descended or accrued; nor shall any person or persons whatsoever have or maintain any writ of .right, or any other real or possessory writ or action, for any manor, lands, tenements or hereditaments, of the seizin or possession of him, her or themselves, his, her or their ancestors or predecessors, nor declare or allege any other seizin or possession of him, her or themselves, his, her or their ancestors or predecessors, than within twenty-
But let us suppose for the argument’s sake that we are mistaken in our construction of the act of 1855 and that ordinarily a defendant could in such a case defeat the plaintiff’s right to recover by showing that from the date when the first payment of the ground rent became due a period of more than twenty-one years elapsed without any payment or lawful demand being made upon the person who was obligated to pay the rent. Yet, in our opinion, the present case does not fall within that rule. We think that the present appellant is estopped from asserting, under the admitted facts, that the ground rent claimed in this suit is extinguished or irrecoverable. We cannot better summarize the facts upon which we reach this conclusion than by quoting from the printed argument of the learned counsel for the appellee:
“Appellant’s title to the land is derived from John Roberts, the elder, who took title to the land under the deed reserving the ground rent in question. Her title came through John Roberts, the younger, and Stella M. Roberts Taft, respectively the son and granddaughter
We think these authorities establish the doctrine that, on the facts of the present case, John Roberts, the younger, and Stella M. Roberts Taft were clearly estopped from denying that the ground rent purchased by the
The assignments of error are overruled and the judgment is affirmed.
Dissenting Opinion
dissenting:
Even if the Act of April 27, 1855, P. L. 368, could be fairly regarded as an isolated enactment, it would be difficult for me to find, within the limits marked by its expressive language, a foundation to support the interpretation of it declared in the majority opinion. To my mind this difficulty becomes insurmountable if we view that act as but one step in the long march of legislation, the ultimate object of which was to “unfetter” real estate and make it freely alienable. That it must be so viewed, its every section seems to assert. The first and perhaps most familiar one declares that thereafter every estate tail, no matter with what solemnity created, “shall be taken and construed to be an estate in fee simple, and as such shall be inheritable and freely alienable.” Its seventh section, breathing the same spirit, provides: “That in all cases where no payment, claim or demand shall have been made on account of any ground rent' for twenty-one years, .... a release or extinguishment thereof shall be presumed.” As if to prevent any discussion as to the nature or effect of this presumption, these words are added, viz.: “and such ground rent shall thereafter be irrecoverable.”
It seems clear to me then that the legislature plainly defined a condition which, if permitted to exist for more than twenty-one years would inevitably, ex vi statuti, be
But even in passing the act of 1855, the legislature, in its wisdom, had not yet determined that the time was ripe for the final step putting it beyond the power of the owner of land to charge it with an irredeemable ground rent. It would therefore have been competent at any time, after the act of 1855 and prior to the act of June 24, 1885, to which I shall later refer, for the owner of the land to have again bound it by a ground rent, in all respects similar to the one which could no longer be enforced by reason of the act of 1855. And, if the parties could accomplish that object directly, it might be argued with some plausibility that they could reach the same result by some indirect action, payment, demand, etc., plainly indicative of their mutual intent. This question, however, is not before us.
But in 1885, in the act already referred to, the legislature finally determined that the existence of irredeemable ground rents constituted an obstacle to the evolution and development of the public policy of the state and absolutely prohibited their future creation. “Whereas, The policy of this commonwealth has always been to encourage the free transmission of real estate and to remove restrictions on alienations; Therefore, Section 1. Be it enacted, etc., That from and after the passage of this
The doctrine of estoppel has its foundation in that sense of common justice and fair dealing recognized and upheld by most civilized men. If John Roberts, by his declaration that the property he owned was subject to a ground rent, induced another to purchase that rent, he ought not to be permitted thereafter to deny it to the injury of that purchaser. But while the landowner thus declared that his land was subject to a ground rent, he did not undertake to say that such rent was an irredeemable one, and even if he had so stated and honestly desired to subject to it such rent, he was powerless to effectuate that desire. Presumably both he and the purchaser of the
I have not thought it necessary to again go over the decisions so elaborately reviewed in the majority opinion. I think it sufficient to say that I do not understand the majority opinion even to contend that any one of them is of binding or controlling force in the determination of the exact question raised by this record. No one of them was predicated on such a state of facts as we have now before us, and sound conclusions can rarely be reached by attaching undue importance to forms of expression which were uttered always with reference to the state of facts then under consideration.
For the reasons herein outlined as briefly as possible, I am, with all due respect for the majority of the court, unable to concur in the conclusion they have reached.