14 Pa. 108 | Pa. | 1850
The opinion of the court was delivered by
— This is an action of covenant to recover the arrears of ground-rent, due on an indenture of perpetual lease, by which Samuel Ewalt, deceased, conveyed part of lot 179, in the city of Pittsburgh, to Isaac Wickersham, subject to an annual rent, &c., payable in half-yearly instalments, to the said Ewalt, his heirs and assigns. The defendant, Thomas Wickersham, who was the assignee of the premises, among other matters, pleaded in bar of the action, that he had transferred and assigned over his interest, before any rent became due. On this, among other pleas, issue was joined. In support of-this issue, the defendant offered to prove, that in June, 1843, he made a gift of the property to Isaac Wickersham ; that he delivered to him full possession of the premises, in pursuance of the gift; that the property has ever since been taxed in his name, and that all the rent which has since been paid, was paid by the said Isaac, &e. To the evidence so offered, the plaintiff objected, contending that, admitting all to be true, as alleged, still the defendant, being the legal owner of the property, though in trust for Isaac Wickersham, is still liable to the plaintiff for the rent in arrear. And thereupon the court sustained the objection for the reason assigned, and rejected the evidence. From the bill of exceptions, which is our only guide, it distinctly appears, that the only question raised and point decided, in the District Court, was, that inasmuch as the defendant held the legal title, though in trust, he was liable for the ground-rent in arrear, notwithstanding he had previously to the time the rent accrued, conveyed, or what is the same thing, assigned, by way of gift, the equitable interest to another, who was in possession, and in the enjoyment of the property. Was the court right in rejecting the evidence on the exception, and for the reasons assigned, is the only question. I say this is the only question, because it does not appear, but the contrary is evident, that any exception was taken to the evidence, on the ground of the statute of frauds, which now the defendants in error press into the argument in support of the judgment. If the defendant is personally liable in the action, it is because of privity of contract or of estate, and as privity of contract cannot be pretended, the liability must be rested on privity of estate. What, then, is the privity of estate, which subjects a person to personal liability for arrears of ground-rent ? And on this point we are at no loss for authority. The privity of estate which induces personal liability, is .the actual or beneficial enjoy
It is very true, as was ruled in Irish v. Johnson, a case decided at the last term and not yet reported, an action of covenant is not the proper action in a .case like the present. But since then, the legislature have ¡Dassed an act giving to the plaintiff in this case, and in all others similarly situated, full and complete remedy by action of covenant. As the constitutional power of the legislature cannot be doubted, the act cures the error assigned.
Judgment reversed and a venire de novo awarded. •