Phillips v. Bonsall

| Pa. | Dec 14, 1809

Tilghman C. J.

delivered the Court’s opinion.

We are to decide this cause on a case stated, on which several points have been raised.

1. Has the rent charge of 40 dollars created by the deed from Joseph Morris to Clarkson and Bonsatt, 3d August 1774, been extinguished?

The principle of law is, that when the right to the land, and the right to the rent, are united in the same person, the rent is extinct. The defendant’s counsel have endeavoured to shew, that this union has taken place in the present instance, because John Phillips in whom the title to both the ground rents was vested, derived under the deed from' Clarkson and Bonsall to William White, a right to enter on the land, in consequence of the non-payment of the second rent-charge. But this argument is fallacious. When Bonsall and Clarkson executed that deed, they had no right to the land, and their right of entry was • only for the purpose of compelling payment of the rent; and their estate, if they had entered, would have ceased on payment of the rent. Besides, this right of entry has never been exercised by any person claiming under that deed; and to say that it ought to have been exercised, is saying, that when a man has reserved to himself two remedies for recovery of the rent, viz. entry on the land, and an action of covenant, he shall be compelled to relinquish one of them, and take the other, which in the present instance, instead of being a remedy, would be an injury. The fact is, that John Phillips, although entitled to both the rents, never had any right to the land,, nor had William White, under whom Phillips claims the second rent-charge. The rent therefore is not extinct, and so it was decided by this court, in Phillips v. Clarkson and Bonsall, December term 1800, which was, as far as relates to this point, in all material circumstances the same as the case before us.

2. The defendant’s counsel have contended, that supposing the rent to be in existence, Bonsall is not liable for more than a moiety of it, because the grant to him and Clarkson, was, as tenants in common. But although the land was conveyed to them as tenants in common, they covenanted jointly to pay the rent, and there is nothing illegal or improper in such joint covenant. The case cited from 2 Burr. 1190, was much stronger, where the executor of the grantee who died first, was held liable for the -whole rent, although the -whole interest in the land was vested in the other grantee who survived him, because they covenanted jointly and severally to pay the rent.

This is not at all contradicted by Slingsby’s case, (5 Co. 19.) on which the defendant’s counsel have relied. It is there laid down, that if a man by indenture demises Black Acre to A. and White Acre to B. and Green Acre to C. and covenants with them et quolibet eorum, that he is lawful owner of all the said acres, in that case, in respect of their 'several interests, the covenant is made several. This construction is right, and accords with the intent of the parties, giving to every person the remedy which is necessary for any injury he may sustain; and it is agreeable to the expressions “ et quolibet eorum.fi which apply to each severally. But to construe the words of Bonsall and Clarkson as a several covenant, would alter their plain meaning, and deprive the grantee of part of his security, while they were both alive.

A third point was made by the defendant’s counsel, that Phillips cannot support an action against Bonsall, because he is the assignee of William White, who was the assignee of Bonsall and Clarkson. Some confusion is created in this case by the circumstances of two rent-charges arising out of the same land. But when the facts are distinctly stated, it will appear that this last point cannot be supported. The present action was brought to recover damages for non-payment of the first rent-charge. Now it is not true that William White was assignee of Bonsall and Clarkson, of this rent-charge, or of any thing relating to it. Nor is there any thing in the deed to William White, which directly or indirectly provides or insinuates, that Bonsall and Clarkson shall be discharged from their covenant to pay the first rent-charge. Indeed it would have been absurd to make such provision; for at that time William White had no title to the first rent-charge, or any part of it.

It is therefore the opinion of the court that the plaintiff is entitled to recover damages for the non-payment of the whole rent-charge created by the deed of Joseph Morris and wife to Clarkson and Bonsall.

Judgment for plaintiff.