Palairet v. Snyder

Mr. Justice Sterrett delivered the opinion of the court, It may Ido that the twenty-first section of the Act of April 22, 1850, was intended to apply to ground-rent deeds such as that under consideration; but, in our opinion, the language employed will not admit of that construction. The Act declares, “Whenever a deed or other instrument of writing conveying real estate shall be made, wherein shall be contained a reservation of ground-rent to become perpetual, upon the failure of the purchaser to comply with the conditions therein contained, no such covenant or condition shall be so construed as to make the said ground-rent a perpetual incumbrance upon the said real estate; but it shall and may be lawful for the purchaser thereof, at any time after said ground-rent shall have fallen due, to pay the full amount of the same, and such payment shall be a complete discharge of such real estate from the incumbrance aforesaid: ” Purd., 748, pl. 2. The deed, recited in the ease stated, after reserving a yearly ground-rent of forty-five dollars, payable in half yearly instalments of twenty-seven dollars each “ in every year hereafter forever,” contains a provision that if the grantee “his heirs or assigns shall and do at any time, within, ten years from the date hereof, pay or cause to be paid to the grantors, or survivors or survivor of them, their or his heirs or assigns the sum of seven hundred and fifty dollars and the arrearages of such yearly rent to the time of such payment, then the same shall forever thereafter cease and be extinguished, and the covenant for payment thereof shall become void; ” and the grantors shall then execute and deliver to the grantee, his heirs and assigns, a sufficient release and discharge of the said 3'early rent. It will be observed that this instrument differs from an ordinary irredeemable ground-rent deed only in this, that it secures to the grantee an option which he may or may not, according to his own pleasure, exercise within the time specified in the deed. It contains no covenant on his part to pay the capitalized sum, within the time named, or at any time. In this respect it differs widely from the deed under consideration in Springer v. Phillips, 21 P. E. Smith, 60. The ground rent reserved is in terms perpetual, subject only to the unilateral privilege given to the grantee which must be exercised by him, if at all, during the ten years and not thereafter. It contains no condition, upon the failure to comply with which by the grantee, the ground-rent becomes perpetual, and hence [236] it does not possess tlie distinguishing feature that appears to have been contemplated by the framers of the statute. If the language they employed means anything, they must have had in view an instrument containing, as the Act itself expresses it, a reservation of ground-rent, not perpetual in its inception, but to become perpetual upon the failure' of the vendee to comply with a covenant or condition, to that effect, contained in the instrument; and, hence it is provided that no such covenant or condition shall be so construed as to make such ground-rent a perpetual incumbrance, and it shall be lawful for the purchaser, at any time after the ground-rent shall have fallen due, to pay the full amount thereof, etc. In the deed before us there is no provision, express or implied, that the ground-rent therein reserved shall become perpetual upon the failure of the vendee to comply with any covenant or condition therein contained. On the contrary, it contains an express covenant for the payment, perpetually, of the rent reserved. It is to be paid semi-annually, “in every year hereafter forever; ” and this is the very essence of the contract. To this is superadded a naked, unilateral option, limited as to time long since expired, wholly permissive, and in no sense whatever obligatory on the grantee, his heirs or assigns ; and ■hence there is no covenant or condition to be broken, or so construed as to make the rent a perpetual incumbrance. In its very inception the rent reserved was perpetual and continued to be so. We are therefore of opinion that the Act does not apply to ground-rent deeds of the class to which the one before us belongs. But there is a class of ground-rents to which it is perhaps applicable, viz: those in which the annual rent is not perpetual, but the capitalized rent, like the principal of a mortgage debt, falls due and is demandable by the grantor, at or within a certain time, and in default of payment, the rent thereafter becomes perpetual. The only question with which we are now concerned, howevei’, is whether upon a fair and reasonable construction of the Act, the deed before us is within its provisions. For reasons that have been briefly suggested and others that might be added, we think it •is not; and hence the defendants in the case stated were entitled to judgment for costs. Judgment reversed, and judgment on the case stated is now entered in .favor of the plaintiffs in error defendants in the court below.