Robb v. Beaver

A husband and wife seised, in right of the wife of an estate of inheritance, “ granted, demised, leased, set and to farm let the same unto A. B., to have and to hold to the said A. B., his heirs and assigns, from the day of the date hereof, for and during the existence of the world, he yielding and paying therefrom and thereout yearly and every year hereafter to the said grantors, their heirs and assigns, the yearly rent of $100and in the same deed the grantees covenanted to erect a house upon the premises of the value of $400; and upon their failure so to do, a right to the grantors to re-enteT was reserved: Held, that upon the death of the wife the husband was seised of the whole estate, created by the deed, in fee, and that it was subject to a levy and sale for the payment of his debts.

ERROR to the District Court of Allegheny county. John F. Beaver, Esquire, against Robert Robb. This was an amicable action in which the parties agreed to a special verdict, the substance of which may be thus stated: William Pentland and Mary his wife were seised in right of the wife of certain lots in the city of Pittsburgh, which they disposed of to various purchasers by deeds of perpetual lease, as they are usually styled, reserving certain rents to the grantors jointly. William Pentland surviving his wife, judgments were obtained against him, and these rents were levied on as his property. John Harper the plaintiff in the first execution assuming that the interest of William Pentland in the rents was but a life estate, petitioned the court to appoint a sequestrator; and the defendant in this case, Robert Robb, Esq., was thereupon duly appointed by the court, and continued for some time to receive the rents. After-wards the same rents with other property of Pentland were levied on at the suit of the Merchants & Manufacturers’ bank, and assuming that, the title of Pentland was a fee-simple, the sheriff proceeded to sell them, and made a deed to John F. Beaver, Esq. the plaintiff in this issue, for all the ground-rents which had been previously sequestered and in the hands of the defendant. Afterwards a rule was obtained in the case of Harper y. Pent-land, on Robert Robb, Esq. the sequestrator, to show cause why the writ of sequestration should not be set aside. On argument of this rule, the court ordered an issue to be tried for the purpose of ascertaining “ the quantity of estate William Pentland as survivor of his wife (late Mary Watson) had in the premises set forth in the schedule and levy.” The plaintiff contended that William Pentland was seised in fee of the rent in question; the defendant that he had but a life estate in his own right, the remainder in fee being in the children of Mary Pentland. The.deeds made by Pentland and wife on which the rents in question were reserved, were all in the same form, and contained the same covenants, the material words of which were as follows: “William Pentland and Mary his wife have granted, demised, leased, set, and to farm letten, and by these presents do grant, demise, lease, set, and to farm let unto A. B. all that lot, &c. To have and to hold to the said A. B., his heirs and assigns, from the day of the date hereof, for and during the existence of the world, yielding and paying therefrom and thereout yearly and every year hereafter to the said William Pentland and Mary his wife, their heirs and assigns, the yearly rent, &c.” Beside the usual covenants to pay the rent, the grantee also covenanted to build “ a good and substantial building of the value of $400,” on the property demised. The grantors to have a right to enter and distrain for rent in arrear; and if two years’ rent remained unpaid, might enter and without hindrance, hire, rent or demise to any other tenant for the best rent that could be obtained, and for such term of time as should be sufficient to pay all arrears, &c. “And the said A. B. (grantee), his heirs and assigns do further covenant, that if they the said, &c. do neglect and fail to erect and complete the buildings hereby stipulated to be erected on the said demised premises within the time specified for that purpose, then it shall and may be lawful for the said William Pentland and Mary his wife, their heirs and assigns, to enter on the said demised premises, and to expel and put out any and every person found thereon, and to let, lease and demise the same at his or their pleasure for any term not exceeding five years from such re-entry, and in case of the neglect or refusal of the said A. B. (grantee), his heirs or assigns, to give good satisfactory security within the said five years, for the faithful performance of his covenants in relation to the completing of the said buildings, then at the termination of five years from such re-entry, the estate of the said William Pent-land and Mary his wife, their heirs and assigns, shall become absolute in the premises, at law and in equity, to all intents and purposes, as if this indenture had never beén made; and in like manner, if after a re-entry upon the said premises for two years’ rent being in arrears, if the said A. B., his heirs or assigns shall for five years after such re-entry neglect or fail to pay and discharge the rents in arrears, and the rents accruing with interest and costs, and if the same be not fully paid at the end of five years from the time of the re-entry as aforesaid, then the estate of the said William Pentland and Mary his wife, their heirs or assigns, shall become absolute in the said demised premises at law and in equity to all intents and purposes as if this indenture had never been made.” Upon argument, the following opinion was delivered by Grier (President). — The question for our decision is, what estate did William Pentland take in the rents thus reserved. 1. It needs neither argument nor authority to show that the grantees in these deeds take an estate in fee-simple in the land demised. Nor is this the less true, because the estate granted is on condition. A condition annexed to an estate given, is a divided clause from the grant; therefore cannot frustrate the grant precedent. Hob. 170 ; 2 Cruise 2. 2. It is equally plain that the rent reserved, whether we call it a fee farm rent (as we with propriety may in this State, where the statute quia emptores is not in force) or a rent-charge, is an estate of inheritance, and governed by the same rules as to quantity of estate as other estates of inheritance. 3. It cannot be denied that a feme covert in conjunction with her husband may alien her lands in fee-simple, or for any less estate, by deed acknowledged in due form, as effectually as by a fine or recovery; and that this alienation may be for such consideration as she and her husband may choose to accept; and that if the consideration be a sum of money, such money when received vests absolutely in her husband; and further that the alienee may, on return of the consideration money, make a valid conveyance of the same property to the husband and his heirs; nor would any court, either of law or equity,-trust the husband in such a case as a trustee for his wife. Nor do I believe any decision can be found in the books that establishes the doctrine, “ that if husband and wife sell wife’s land, and for bonds made payable to the husband, and husband die, his administrators shall not have the bonds.” In England, where the estate of the wife can be conveyed only by fine and recovery, it has been decided that “ as a married woman is allowed to join with her husband in levying a fine and suffering a recovery, she is also allowed to join with him in declaring the uses of them; and although the wife should be an infant, yet her declaration of the uses of a fine or recovery, if she be allowed to levy or suffer one, shall bind her; 4 Cruise 140; 2 Roll. Ahr. 798; and if a husband alone declares the use of a fine levied by him and his wife of the wife’s estate, it shall bind the wife unless her dissent appears; for when she joined her husband in the fine, it must be presumed that she consented to the declaration of the uses of it. 4 Cruise 141; 5 Rep. 57; Swan-ton v. Raven, (3 Atlc. 105). It follows as a corollary, that if the husband and wife join in the declaration of the uses of a fine in which the estate is declared to be for the use of husband and wife and their heirs, this would be valid and binding on the wife and her heirs; nor can any case be found in which a court of chancery would declare the surviving husband to have but a curtesy estate, or that he is trustee for the heirs of his wife, as to the inheritance. Now, what distinction can be produced in law or equity on the difference between holding a woman bound by her declaration of the uses of a fine, and not bound by the reservation of a rent to herself and husband on the sale of her estate ? If she may sell for money, why not for a ground-rent? If she is competent to dispose of her land, why not of the consideration? If she is estopped by her deed from denying the estate conveyed to the grantee, why not as to the person entitled to the reserved rent ? The indenture creates two estates, one on the land, the other in the rents; why should the words of the deed be construed to have their legal effect as to the one, and not to the other also? See Pratt v. Lewis, (4 Whart. 24). The husband and wife have each contributed their interest in the land, he his freehold and she her fee, to purchase a fee farm rent, or a rent-charge on the same land. The estate thus purchased is a joint one to them and their heirs. IVhat right have the court to put any other construction upon this deed than that given by the law to the plain words of the reservation ? For the rule of law is, that where the lease is by indenture of sundry persons, they are estopped to claim the rent in any other manner than it is reserved in the deed, because the indenture is the deed of each party, and no man shall be allowed to recede from-his own solemn act. 2 Roll. Air. 447; Co. Litt. 47. ____ Nor can the rule that the rent follows the reversion affect this~’ case, because it is a feoffment in fee to the grantee and his heirs, and there is no reversion in the heirs of the wife. For if a man” seised of lands of the part of his mother makes a lease for life, or gift in tail, reserving rent to him and his heirs, this rent shall go with the reversion to the heirs of the part of the mother, because the nature of the contract is such that the retribution should go to those that lose the profit of the lands during the lease or gift. Co. ' Litt. 126. But if he had made a feoffment in fee, reserving rent to him and his heirs, this rent shall, go to the heir of the part of the father, because here is an entire disposition of the lands and the rent in the nature of a new purchase, coming into the family from the grant of the feoffee, and therefore the blood of the father shall be preferred. Co. Litt. 426; Gilbert on Rents 72 (marg.). 4. It is well settled, that if a husband and wife take to them-■ selves an estate jointly during their marriage, they have not several estates, nor are they tenants in common, nor yet joint tenants in the proper or legal sense of the word; but in consequence of the union of their persons by marriage, each has the whole, estate in the parcels granted, entirely as one person, so that on the death of either of them the whole estate belongs to the survivor. 8 Coke 71 6; 2 Tern. 120; 2 Cruise 441. Our Act of Assembly of 31st March 1812, concerning joint tenancy, which abolishes the right of survivorship between joint tenants, has never been.construed to affect the joint estate of husband and wife, for the very sufficient/ reason that in law they are not joint tenants. ' It would seem to follow, therefore, as a necessary conclusion from these premises, that William Pentland having survived his wife, has an estate in fee in the rents in question. But it will be proper to notice some of the objections which have been so well urged by the counsel for defendant. He contends that there is a rent service, and not a rent charge; that it is reserved out of the estate, and is not a new grant; that it is a creature of the lessor and not of the lessee. That the wife by her acknowledgment of the deed, conveyed the land only to the grantee ; and this is no conveyance of the reservation to her husband, or evidence of an intention in her that her estate in the rent should differ from her former estate in the land; and this is argued farther from the words of the condition in the deed, that in case of reentry for covenant broken, and forfeiture of the estate, “ then in that case the estate of the said William Pentland and Mary his wife shall become absolute in the premises, to all intents and purposes as if this indenture had never been made.” But to this I. think it is well answered, that the rent is the creature (or the creation) of the deed, and that all the parties claiming anything under that deed are estopped from claiming any other estate than that conveyed by the deed. That the covenants and conditions in the deed are for the purpose of compelling the performance of it by the grantee of the land, and pass by an assignment of the rent, so that if by legal forfeiture the estate be again revested in the grantors, they would be trustees for the assignee of the rent; therefore these words in the condition cannot be construed to set aside the fair legal effect of the reservation, the words of which are alone to direct us in our inquiry as to the quantum of estate which any party to the indenture can claim in the rent created by it. Scott v. hunt, (7 Peters 604). But the case of Weeks v. Haas, (3 Watts Sergeant 520), is relied upon as establishing the doctrine, “ that as the consideration has passed from the wife, the husband took the legal estate as trustee for her, and the law will imply such a trustee»estate when her land has been conveyed in payment, and the object is not to part with the value of it but to reserve or take back an equivalent.” The correctness of the arguments and doctrine asserted by the learned Chief Justice in that case cannot be doubted, when applied to the case before him. But to extract a sentence or two out of an opinion, without reference to the circumstances of the case to which they refer, is a sure road to error. No judge can speak oracles in every sentence, or write maxims of universal application to all cases. That was a case of partition ; the object of the deed was partition, not conversion. There was no evidence whatever that the wife intended to make a gift to her husband. She acknowledged no deed or instrument of writing exhibiting any intention to convey her interest in the land or any portion of it to him. The releases to the husband were by the other coparceners ; why then should not the implication of law be in her favour, when she had executed no instrument of writing showing an intention of devesting herself of any portion of her estate in favour of her husband or any other person, her release being only for the purpose of partition ? And of the same nature are the cases referred to by the learned court in their opinion, where the wife’s esta'te has been mortgaged, and her only object in becoming a party to the transaction was to permit a security to the mortgage, not to part with, her equity of redemption to her husband; and even in such cases Chancellor Kent says, “ if it be the true construction of the mortgage deed that the equity of redemption was intended by the wife to be reserved to the husband alone, it seems that he may take it. See Hemarest v. Wynhoop, (3 Johns. Chan. Rep. 147). But in the present case there is no room for implication. The rent is created by the deed, and the quantum of estate or title to it can be found only in the deed. Broad v. Broad, (2 Chan. Ca. 98, 161); Ruscambe v. Hare, (6Hold’s Pari. Cas.); 1 Vem. 213; 2 Tern. 437. The wife is party to the indenture, and is as much estopped by it as any other party who signed it. The deed shows on its face a plain intention of the wife to dispose of the fee in the land, and accept in lieu thereof a rent charge vested in herself and husband, and their heirs. She had power by law to vest the whole estate in her husband, for no consideration in fact save love and affection. She could have transferred her whole estate for a sum of money paid to her husband. Why shall not her deed bind her, when she has made a much belter bargain for herself? Now although I am willing to go every length in the way of fair construction to protect the property of the wife from the rapacity of the husband, and fully concur with the declaration of the chief justice in Ferree v. Elliott, “ that I will never consent to give effect to a claim by the husband, or those in his stead, to what was at any time the wife’s real estate, when it is possible to defeat it by any construction, however forced,” yet I believe a different construction than that which I have put on this deed, would be sheer legislation, and amount to a denial of the wife’s power to convey her own estate in the mode pointed out by our statutes. It would be equivalent to annulling a joint declaration of uses made by husband and wife, on a fine levied by them; a power which no Court of Chancery in England ever assumed. 8 Serg. Sf Rawle 315. Let judgment be entered for the plaintiffs. This opinion was assigned for error.