Carson v. New Bellevue Cemetery Co.

Mr. Justice Clark delivered the opinion of the court, January 7th 1884. This ejectment was brought to recover the possession of a ¡Dart of out-lot No. 200, in the reserve tract, opposite the city of Pittsburgh, in the county of Allegheny. The facts from which the controversy arises are admitted on both sides, and .are fully set forth in the formal bill of exceptions, sealed in the court below. At the time pf the execution of the deed to Harvey Boll-man, in the year 1854, Carson, the grantor, held in the lands in dispute an estate for life only as tenant by the curtesy; the fee was vested in the heirs at law of Nancy Carson, the deceased wife of the grantor. The deed, however, purported to convoy-an fee-simple, and contained express covenants of general warranty of title in the usual form. Subsequently, John Carson and his sister Nancy, who was intermarried with John R. McFadden, two of the said heirs, became the owners in common of the fee, subject to the curtesy, one half part thereof by descent, and the other half by purchase of the remaining heirs, through the deed of Hugh S. Fleming. John R. and Nancy McFadden, having died, left surviving them one son, William McFadden. This suit was brought by the said John Carson and William McFadden, who claimed the fee, after the death of the tenant by curtesy, to recover the possession as against the defendants, who hold under the title of Harvey Bollman. It is admitted that the plaintiffs, at theinstitution of the suit, were and still are seised of shares in the real estate late of William Carson, which exceed in value the interests they claim in the locus in quo. Under this state of facts, it is contended on the part of the defendant, that the plaintiffs are by the warranty of William Carson estopped or barred from asserting their title; that as far as they have assets in fee simple as heirs, they are barred, by force of the warranty of their ancestor, operating as a re-butter. The general rule of law thus invoked is doubtless a very ancient one ; it was one of the operating principles of the common law warranty, which filled so important a place in the English law of real property. The reason for the application and enforcement of such a rule at the common law was not more apparent, however, than under our present system, and .under some modifications the same rule obtains in this country [580] At the common law, every warranty, whether lineal or collateral, which descended to the heir of the warrantor, was a bar against the heir to demand any lands or tenements against the warranty. The warranty of tenant by the curtesy is collateral, as the heir at law upon whom it descends cannot claim the land as the heir of the warranting ancestor, but as the heir of the warrantor’s wife, in whom was the fee. The injustice of barring the heir from claiming the land by a collateral title, when no assets descended, gave rise to the statute of Gloucester, 6 Edward I., which remedied this wrong, in the case of tenant by the curtesy.' By this statute it was provided, that if a tenant by the curtesy alien, with warranty, and die, the heir was not thereby barred, unless he had assets, in fee simple, by descent, by the tenant of the curtesy; and if lands or tenements thus descended to the heir, he was barred, having regard to the value thereof: Coke Litt. 305, 380. This bar was, and still is, technically known as a rebutter, and is in the nature of an estoppel. By the statute 4 and 5 Anne, c. 16, § 21, it was provided that “All warranties made by any tenant for life of any lands, tenements or hereditaments, the same descending or coming to any person in remainder or reversion, shall be void and of no effect; and likewise all collateral warranties which shall be made of any lands, tenements or hereditaments by any ancestor, who has no estate of inheritance in possession, in the same, shall be void against the heir.” But whilst the statute of Gloucester was extended to Pennsylvania, 3 Binney 602, the statute of Anne was not, and it was distinctly decided in Kesselman’s Lessee v. Old, 4 Dallas 168, and in Eshelman v. Hoke, 2 Yeates 509, that a warranty by tenant by the curtesy, with assets, was a bar to the heir, the statute of Anne not being in force in this state. It is true that a warranty could not, at the common law, descend on any other than the common law heir and the same rule was held to apply to lands held in borough English, and under the custom of gavelkind, Litt. §§ 735, 736; and yet the customary heir, says Lord Coke, although not liable directly upon the warranty, was held so by reason of the inheritance: Coke Litt. 376 a. This qualification, as suggested in a note to the case of Paxon v. Lefferts, 3 Rawle 59, was perhaps not drawn to the attention of the court in Jourdan v. Jourdan, 9 S. & R. 268, where the general rule only is stated. As the result of legislation, from time to time, warranty m its original form in England has long ago been abandoned, the whole system having been abolished by the statute 3 and 4 William IV. cc. 27 and 74; whilst the remedy by ancient warranty may be said never to have had any general practical existence in the United States. Personal covenants have superseded the warranty of the common law. In the discussion [581] of the effect of these personal covenants, however, it is in some cases necessary to recur to the rules and operation of the ancient warranty; which, although “obsolete as the curious learning respecting it unquestionably is,” affords the most valuable aid in determining the rights and responsibilities which result under present forms. We are of opinion, that whilst the usual covenants of warranty now in use, and which have superseded the warranty of the common law, are only enforceable in covenant, and sound in damages for the injury done, yet such a covenant not only defends the covenantee, his heirs and assigns against the consequences of an eviction, in the manner stated, but in analogy to the operation of the ancient rule, when applied under similar circumstances, precludes the grantor and his heirs in general, holding assets equal in value, by reason of the inheritance, from claiming the land. “ The covenant of warranty,” says Mr. Justice Stoby, in Stoddard v. Gibbs, 1 Sumner 263, “ is in this country deemed a personal covenant, and may not authorize a recovery over of the value from the heir, if lie has assets, in a warrantia chart®, but only in an action of covenant; yet that does not prevent the covenant of warranty from operating as a bar to the title of the heir by way of rebutter, when it descends upon him from the warranting ancestor.” The purpose of the rule is to avoid circuity of action, and that reason is as apparent now under our practice, as at any time heretofore. We may upon this branch of the case refer also to Bates v. Norcross, 17 Pick. 14; Flynn v. Williams, 1 Ired. (N. C.) 509; 4 Kent Com. 471; Cole v. Raymond, 9 Gray 217. “ The effect of a covenant of warranty, by way of rebutter,”, says Washburne in his treatise on the Law of Real Property, Vol. 3, page 480, “is illustrated in the case of Bates v. Nor-cross, already cited, in which the doctrine of lineal warranty, borrowed from the common law, is applied; although as a general proposition the ancient doctrine of lineal as well as collateral warranty is exploded in this country. The ground of the decision in such a case is, that by holding the covenant of an ancestor, from whom assets have descended to his heir, to be a rebutter to the claim of the heir to the land, which the ancestor has wrongfully conveyed with warranty, a circuity of-action is avoided; since the moment the demandant were to recover the land, the tenant would acquire the right to recover the value thereof from the heir, in an action upon the ancestor’s covenant of warranty.” But it is unquestionably true that the lieir, in such a case as this, cannot be barred unless he has assets, in equal value, descended from the warranting ancestor; and here the defend-, [582] ants interpose the agreement of the 5th August 1862, which is in the following form : “Whereas, John Carson and wife, and John R. McEadden and Raney his wife, have this day executed to James Old, of McClure township, Allegheny county, a release of all the right, title, interest and claim of them, of, in and to a certain tract of land in the said reserved tract, opposite Pittsburgh, in the county of Allegheny, being part of out-lots Ros. 2Í7 and 218 in said reserved tract, and containing two acres and seventy-one and nine one-hundredths perches, the title of which was in them through their mother Raney, late Raney Bennett, without consideration whatsoever from me, and for my benefit. “ Therefore, know all men by these presents, that I, William Carson, in consideration thereof, hereby covenant and agree to and with the said John Carson and Raney McEadden, that I shall not, nor will I by deed, mortgage, sale, judgment, devise or otherwise, prejudice or interfere with the rights of the said John Carson and Raney McEadden, as my heirs at law, as to their free and equal share in all my real estate, but the same shall remain free and uncontrolled, to be divided, amongst all my legal heirs including the said John and Raney, at my decease. “ Witness my hand and seal this 5th day of August 1862. “Witness: William Carson, [l.s.] S. B. Gill. John Dyer.” This agreement, under the ruling of Taylor v. Mitchell, 6 Norris 520, must be taken and construed as an instrument, in the nature of a covenant to stand seised to the use of the covenantor’s heirs. At the execution of the writing, Carson had no heirs; no one is heir of the living, and until the time of his death his heirs could not be ascertained. The use was therefore contingent, and the seisin of the estate rested in William Carson during life. At his death; however, his heirs were determinable under the intestate laws. His last will and testament, which was probated after his death, was of no effect, as he had covenanted not to make a will, and those who were his heirs under the law took his realty'as heirs according to the covenant. The express terms of the covenant are, that his real estate should be divided among his “legal heirs,” and that he would in no way interfere with or divert the same from passing to them, by descent. It was their rights as heirs they sought to protect. Alienation was what was expressly provided, against; and although a consideration was expressed, the instrument ivas only sustainable as a covenant to stand seised upon the consideration of love and natural affection. The instru-. ment cannot therefore be regarded as an alienation, such as to [583] withdraw the descended estate from the claim of the ancestor’s creditors. The lands thus acquired must therefore be regarded as assets in their hands, from the warranting ancestor. Upon the grounds herein expressed, therefore, the judgment is affirmed.