Springer v. Phillips

The opinion of the court was delivered, by Agnew, J. The right of the plaintiff to maintain this action is very clear. The covenant extends in express térms to the assigns of the original ground^landlord, and descends also upon the assigns of the original grantor of the estate. It relates directly to the estate itself, which is bound for the rent, and is discharged by the payment of the stipulated price. It would be difficult to conceive of a covenant real more intimately connected with the subject-matter of the deed, or which more directly concerns the holder of the rent and the owner of the land out of which it issues. The following authorities are referred to if any were necessary to prove so plain a proposition: Streaper v. Fisher, 1 Rawle 165; Herbaugh v. Zentmyer, 2 Rawle 159; Weidner v. Foster, 2 Penna. 23; Royer v. Ake, 3 Id. 461. Under the special terms of the covenants in the ground-rent deed, it was not necessary to tender the release of the rent prior to a suit on the covenant for the payment of the stipulated price, viz., $900. The language is, “ then (that is payment of the price being made) the same (to wit, the rent) shall for ever thereafter cease and be extinguished, and the covenant for the payment thereof shall become void; and then the said Oliver Parry and Nathaniel Randolph, their heirs or assigns, shall and will, at the proper' costs and charges in the law of the said grantee, his heirs and assigns, seal and execute a sufficient release and discharge,” &c. It is evident that the release was by the terms of the covenant to be prepared by the owner of the land, and tendered for execution by the owner of the rent. The action is a demand, and all the owner of the estate had to do was to prepare the release and bring the money into court, .and his rights would be protected by a proper order. This can yet be done by our order in relation to execution. We are also of opinion that by all the terms of the deed when considered as a whole, the right to demand the nine hundred dollars as the price of the estate, did not lapse by the expiration of the term of ten years, and the continued payment and acceptance of the rent afterwards. The undoubted intention of the parties as gathered from the entire deed was, that the ground-rent should be extinguished by the payment of the stipulated price of the property within the term of ten years ; but there is nothing which evidences an intention to make the rent irredeemable after that [64] time. The policy of the law is to unfetter the lands of the Commonwealth, and make them freely alienable. There should be something very clear in the intent of the parties to the deed to fix upon the estate an irredeemable charge before we should be compelled to declare that to be the effect of the deed. These are all the questions in the record which we deem worthy of notice, and the judgment is therefore affirmed, and it is also ordered that the defendant below, and Conrad Wittich, terre-tenant, have leave within thirty days to file in the office of the prothonotary of the District Court, a deed of release and discharge of the yearly ground-rent reserved, to be sealed and executed by the plaintiff below, according to the covenant set forth in the deed creating the ground-rent, and to be delivered to the said Conrad Wittich, on the payment of the sum of $900 and interest since March 1st 1871; and that execution be stayed in the meantime; and on the failure of the defendant and terre-tenant to file a deed for execution within that period, the plaintiff may have leave to issue execution on his judgment.