Ringrose v. Ringrose

Opinion by Mr. Justice Green, The deed from Roger Ringrose and his wife, the present plaintiff, to Michael Ringrose, dated March 28, 1874, was for three tracts of land, one of which, known as the homestead farm, ■containing 100 acres is the subject of the present action of ejectment. A nominal consideration of $3,000 which was never ■paid, or intended to be paid, was recited in the deed, but in the body ol the deed, and immediately following the description of the lands, appears the following recital, “The above described land and interest in the same, conveyed to the party ■of the second part by his agreeing to support his father and mother, Roger Ringrose and Mary Ringrose his wife, to do well and sufficiently maintain, support and keep the said Roger and Mary Ringrose, his father and mother, during their natural lives or the survivor of them with good and sufficient meat, drink, apparel, washing and lodging, use and occupancy of the dwelling where they now reside, and medical attendance in ■sickness and in health, and the funeral expenses of either of them, with the use of horses and carriages to take them to and from church at any time, and all times, and elsewhere at all times, as they may wish to go, and to furnish to each and either of them the sum of $25 per year during their natural lives, and also to pay to Mary O’Neil $250, and to Bridget Ringrose $250, at the death of the said Roger Ringrose and Mary Ringrose his wife, and not before.” It is apparent at once, that the true and only consideration of the conveyance was the performance by Michael Ringrose of the stipulations expressed in the foregoing recital. The expression of the obligation of the grantee is peculiar but perfectly clear. “ The above described land and interest in the same conveyed to the party of the second part by his agreeing to support his father and mother,” etc. That is, the land is conveyed, because of, or in consideration of, the agreement of the grantee to do the several things next expressed. Of course the performance is to take place in the future. The question arising in this case is whether the provision in favor of the grantors is a charge upon the land which will follow it into the hands of — 602 — subsequent purchasers, whether at judicial or private sales. Being embodied in the deed it is notice to all purchasers claiming by subsequent conveyances. If the agreement for support and maintenance was a mere personal covenant of the grantee, unaccompanied by any provision for the permanent occupancy by the grantors of any part of the land conveyed, it would not be a charge upon the land. This was the case in Krebs v. Stroub, 116 Pa. 405, where the contract, while it contemplated the event of a residence on the land at the mere will of the grantors, made no provision for it, conferred no such right upon the grantors, and was not reserved by them expressly or otherwise. The deed was absolute to the grantee who executed a bond independently of the deed, the condition of which alone expressed the things he was to do. But in this case the deed itself provides in favor of the grantors for the “lodging, use and occupancy of the dwelling where they now reside,” and it was to continue during their natural lives. As all the services which were to be rendered to the grantors, were personal to them, they were necessarily to be rendered to them as occupants of the house on the homestead where they, then, and for many years before, had resided. In the case of Rohn v. Odenwelder, 162 Pa. 346, where a similar provision was contained in the deed, we held that it created a charge on the land as to all the provisions. We said, “ Immediately after the provision for the widow is a direction that both husband and wife, grantors in the deed, shall have the right and privilege to occupy three rooms of the house during their joint lives and the life of the survivor. As this is a palpable charge upon the title, into whosesoever hands it might fall, it is entirely consistent with the idea that the grantors intended to have the security of the land for all the reservations in the deed in their favor.” It is true that the words of the grant in that case contained at the beginning the expression, “under and subject nevertheless to the pajrment of the sum” etc., and those words were held to create a charge on the land although they were annexed simply to a direction to pay money. But the provision for the. occupancy of part of the house also created such a charge, and it carried with it all the provisions in favor of the grantors. In the case of Wusthoff v. Dracourt, 3 Watts, 240, we held that a devise of a house to one (Henrietta Miller) for life, with — 603 — remainder in fee to her children, “ Reserving however two of the rooms of said house for the use and during the life of the widow, Mary Wusthoff, mother of said Henrietta Miller, and wife of Julian Dracourt. I desire by this fourth article that the widow Wusthoff may have the choice of those two rooms which shall the best suit her; because I desire that the said widow', Mary Wusthoff, should be sure of a shelter, home, during the time she may have to live,” created an estate for life in the widow Wusthoff in the two rooms, of which she might make any disposition, and that it did not create a mere easement for her personal use. The widow Wusthoff selected the two most valuable rooms in the house and, instead of occupying them herself, leased them to a stranger for a money rent, which she received and retained for her own use. We held that she was at liberty to do this although her daughter, the devisee of the whole house for life, was obliged to pay the taxes and ground rent, because the widow’s interest was an estate for life in the two rooms. In the present case it is not necessary to go so far. Here the right to lodge, and the use and occupancy of the whole house, was preserved to the grantor and his wife during their joint lives and the life of the survivor. As a matter of course this right could not be enjoyed without having and exercising possession of the house, and the interest of the grantors in the house was beyond all question a life estate in both. Said Rogers, J., in Wusthoff v. Dracourt, “The devise of the use of a thing is a devise of the thing itself.” In the case of Bear v. Whisler, 7 Watts, 144, the grantor, Philip Hartman, made an agreement with Jacob Angney by which he sold and conveyed to Angney a certain tract of land containing 125 acres, “ for and in consideration of the said Jacob Angney, his heirs, executors, administrators or assigns, or either of them faithfully discharging the following covenants and agreements, to wit: the said Jacob Angney, shall pay six certain obligations of $80 each,” and further that “ said Jacob Angney shall and will grant and provide for said Philip Hartman and Elizabeth his wife, during their natural lives, the privilege to occupy that part of the dwelling house which they now live in, and provide ” them, with flour, fire wood, a cow, hay and pasture, two pigs, etc. An ordinary deed in fee simple — 604 — was afterwards made conveying the title to Angney with a recital at the end of the attesting clause that it was made subject to the conditions and obligations of the agreement. The grantee not having- performed all the terms of the agreement, and the land being sold away from him at a sheriff’s sale, an action of ejectment was brought by the heirs of Hartman the grantor against an alienee of the purchaser at sheriff’s sale, to enforce the payment of the money obligations mentioned in the agreement. We held that the terms of the agreement could be enforced as by the grant of an estate upon condition, and upon that subject we said, Rogers, J., “ Whether this was an •estate on condition depends on the intention of the parties indicated by the agreement and the deed, which must be taken as one instrument. The principal object of the contracting parties was to provide a comfortable provision for the grantor •and his family. If the intention is clear, and is expressed by -apt words, why should the vendor be restrained to the remedy by the action of covenant ? If the vendee had altogether failed in the performance of his agreement as to the vendor, would it have been an adequate remedy to the vendor to give him an action of covenant? It is manifest it would not. Would he not have been entitled to recover the possession of the premises, in such a case, by action of ejectment? But if the vendor would himself have been entitled to this remedy, I cannot per•ceive why the present plaintiffs are debarred from it, particularly as the object is merely, in this form of action, to enforce the performance of the agreement in good faith. The provisions of the deed equally apply to the recipients of the money as to the vendor himself. But furthermore it is apparent from the face of the deed, that something remains yet to be done by the vendee before his title is perfect; and that so far he may be viewed in the light of a trustee in equity for the vendor notwithstanding the legal title has been conveyed. Of this the purchaser at the sheriff’s sale had notice, because it is spread upon the face of the title under which he claims. We must look to the substance of the agreement and not to the form. .... So a purchaser at sheriff’s sale takes the land subject to the payment of purchase money which appears on the face ■of the deed to remain unpaid, and of which he has notice.” The whole of this reasoning is directly applicable to the facts — 605 — of the present case. In Bear v. Whistler the conveyance was absolutely without any condition on its face. But by a brief reference to the agreement subject to which the conveyance was made, all the stipulations of the agreement were imported into the deed with the same effect as if they had been written in the deed. The word “ subject ” merely gave notice of the conditions and obligations of the agreement, but the agreement itself did not contain that word, or any other equivalent word» or expression, operating as a condition, or restraint, upon the effective words of the conveyance, except as such a consequence was derived from the terms of the agreement itself. Hence the whole force of the reasoning of the opinion of this court was based upon the inquiry, What was the intention of the parties ? In the present case the words of the agreement of the parties are incorporated into the deed and are a part of it, and they need no words of reference or condition in another instrument to bring them within the operation of the deed. Being in the deed in this case, they have the same operative effect, as was given to them in Bear v. Whistler, after they were brought into the deed by the subjecting and conditional reference in the deed. The question then being what was the intention of the parties as to the estate being upon condition, the solution is perfectly simple. The deed expressly declares that the lands are conveyed to the grantee, “ by his agreeing to support his father and mother,” etc. That is because he agrees to support them, for that reason, and upon that consideration, they have made the conveyance. The cause and reason of the conveyance are more effectively and directly expressed in these words, than by the words “.under and subject,” or “ upon condition.” For the obligatory words immediately follow the words of conveyance and description, and the connecting words “ by his agreeing to support his father and mother.” In other words A conveys land to B. B thereby agrees to support the grantor, and B takes his title clogged with this expression of the purpose of the conveyance to him. It is conceded that if the deed had contained the words “ subject to the support ” etc., or “ on condition of the support ” etc., those words would have created a condition which would have fastened on the title. Why ? Manifestly because such was the intention of the parties. But such intention is not specifiealty declared by such words. It is inferred because the — 606 — purpose of support is implied from the words “ subject to,” or “ on condition of ” support. But that purpose is more directly expressed when the deed declares that, “ The above described land and interest in the same conveyed to the party of the second part by his agreeing to support his father and mother.” It is true more words are used, but they are more expressive of the very purpose and intent of the conveyance. There are however other reasons quite as forcible a.s the above, establishing the same intent. The “ use and occupancy of the building where they now reside,” necessarily imports the retention of the possession of part of the premises granted, for the purpose of receiving the support and maintenance provided for, and these words, as we have seen, create an estate in the land which belongs to the grantors. If it belongs to the grantors it never passed to the grantee, and hence affects his title through all its subsequent movements. The other stipulations are also such as to indicate clearly that they were to be performed on the land. Thus the grantors are to be supplied, while occupying a house on the land, with, “ good and sufficient meat, drink, apparel, washing and lodging,” also, “ medical attendance in sickness and in health, and the funeral expenses of either of them, with the use of horses and carriages to take them to and from church at any time, and all times, and elsewhere at all times as they may wish to go.” It is simply incredible that it ever entered into the minds of either of the parties, that such services as these were to be rendered at any other place than on the land itself. At any other place they would be an intolerable and costly burden which would practically destroy the value of the grant. In the case of Ogden v. Brown, 33 Pa. 247, the words of the instrument were a present grant of title to the grantee, “ in the consideration that the said Stephen Wilcox deliver unto me the said Amy Cranmer, one third of all the produce of all kinds whatsoever; grain to be delivered in the half bushel and hay in the barn during my natural life; then the said Stephen to have free and peaceable possession clear of all encumbrances except the lord of the soil.” We held this to be an executory contract, under which the fee passed to Stephen Wilcox on the death of his mother, although there were no words of inheritance in the deed, simply because such was the intention of the — 607 — parties. In the opinion by Strong, J., he said, “ The purpose of the instrument was so evidently to make provision for Mrs. Cranmer, while she should live, that it can hardly be presumed her intention was to part with her interest irrevocably, without effectuating her purpose.” We cite the case as an illustrative instance in which the legal effect of the instrument was made to depend upon an interpretation of the intent of the parties, and that intent was chiefly worked out by the consideration that the grantor meant to have support during her life as a result of the grant. We think the same line of reasoning affects the interpretation of the instrument we are considering. It is entirely conclusive that Roger and Mary Ringrose intended to have their support from their son Michael during the whole of the remainder of their lives, as a result, and as the reason for their conveyance of the title. The consideration could never be paid until the death of both of them, and an actual residence on the land during the entire period was specifically provided as a part of the consideration of the conveyance. In construing a similar instrument in Shirley v. Shirley, 59 Pa. 267, Thompson, C. J., said, “ Courts in my opinion, should be slow to give the effect of absolute conveyances to instruments for provisions made between parents and children, of the kind of which we are speaking, unless the intention be very clear. Such agreements are usually fruitful sources of strife, litigation, and very often of great wrong to aged and feeble parents; and when held to be absolute conveyances, it puts them entirely at the mercy, sometimes of unwilling, and often unkind offspring.” There could be no more forcible or pointed illustration, than is afforded by the facts of the present case, of the justice and humanity of the foregoing comments. The venerable plaintiff is now almost 90 years of age, entirely helpless to earn any present support, and dependent upon the provision in her deed to her son for the very means of existence. Her son is dead, her husband died before him, and she is left alone to maintain a struggle for her life with her own daughter-in-law who has obtained the title to the land through proceedings in the orphans’ court. It is matter of much satisfaction that we are not obliged to hold that the conveyance by which she granted the land in question to her son, was an absolute — 608 — deed free of all conditions or restraints, and that we are at liberty to decide, as we do, that the land and its owners must perform the service, and render the tribute, because and on account of which, the plaintiff, still maintaining by a legally reserved right, an actual residence on the land, was induced to, and did,, part with all the rest of her title. The condition upon which she granted the title has not yet been fully performed, and cannot be until her death, and until it has been fully performed the title of the grantee and his successors has not become complete. The case of Dreisbach v. Serfass, 126 Pa. 32, affords another instance in which the foregoing considerations were applied and enforced in the construction of an instrument quite similar to the present. There the grantor, over 70 years of age, and childless, conveyed by a deed the fee simple title to a' tract of fifty acres of land to his niece, who was a married woman. The consideration recited in the deed was one dollar and “ other good and valid considerations in law hereinafter mentioned, and to be strictly kept by the said Sally Ann Serfass.” These considerations appeared in a clause following the description of the land thus, “excepting, nevertheless the residence of the said Peter Berger, the grantor hereof, of the first part, in the house and on the premises during his natural life until the death and burial of the said Peter Berger, and I, the said Sally Ann Serfass, the grantee in the aforesaid premises, do hereby bind myself, my heirs &c. to find good house room and sleeping and lodging apartments for the convenience of the said Peter Berger during his life, and to find good and sufficient board, lodging, meat, drink, clothing and nursing, medical attendance and all other necessaries for him during his life and a decent burial for him &e. all of which is to be and remain a lien upon the premises aforesaid, until the whole of the duties aforesaid are performed ” etc. Sally Ann Serfass and her husband entered upon the premises and performed the services until she died. Then her husband engaged one Dreisbach to go into possession and take care of the grantor, Berger, until his death, and surrendered the possession to Dreisbach. After-wards Berger made an absolute deed for the premises to Dreisbach for five dollars and, later, died. After his death Dreisbach refused to surrender the possession to Serfass, who thereupon — 609 — brought ejectment to recover the land. We held that the deed to Sally Ann Serf ass was not in the nature of a will, nor yet an absolute deed, but merely an executory contract vesting an equitable estate in the grantee, the legal title remaining in the grantor during his lifetime. We held also that there could be no recovery in ejectment by the heirs of the original grantee in the absence of evidence that the covenants in the deed on the part of the grantee had been performed by the grantee or her-representatives. There was no reservation of any part of the premises, but the right of residence in the house and on the land was excepted, and it was also declared that the grantor’s right to the services of the grantee should be a lien on the land. The determination of the case was not upon the fact of the exception as to residence, nor upon the language declaring the grantor’s rights under the deed to be a lien, but upon the intention and meaning of the parties. Thus our brother Williams, delivering the opinion, said, “ We have seen that the object of the transaction was to secure the continued performance of such services as his age and condition might render necessary. It is important to remember also that this was an arrangement between near relatives, and that the services of the niece are stated to be the consideration which she pays and is to pay for the property of her uncle. He is to have the right to live in the house, to remain in possession, and she is also to take possession, and live in the same house, in order to fulfill her agreement. ... It is equally clear that the exceptions and covenants were intended to protect the grantor against the words importing a present grant. That such words do not necessarily pass a present fee has been repeatedly held. The whole instrument and the nature and object of the transaction must be considered. In Williams v. Bentley, 27 Pa. 294, it was held that the strongest words of conveyance in the present tense will not pass an estate if from other parts of the instrument the intention appears to be otherwise. . . . The right of Serfass to recover possession in this action depended upon whether the consideration agreed upon had been paid. ... It would be contrary to the original intentions of the parties, as well as against good conscience to permit the vendee to recover the possession of the land from his vendor, or one holding his — 610 — title, without rendering, or offering to render, the equivalent contracted for.” Every word of these comments is directly applicable to this case. That it was the intention of these parties that the services were to be rendered in consideration of the conveyance is too plain for argument. That it would be a gross injustice to permit the grantee, or one claiming under him, to retain the land without performing the service is equally clear. And no matter how strong the words of present grant in the deed are, if the intention was that the title should not pass entirely except upon the complete performance of the service stipulated for in the deed, then it does not pass. Such are all these authorities and by them this case is governed. We are clearly of opinion that the plaintiff was entitled to an unqualified affirmance of her first, second and third points, and we therefore sustain the first three assignments of error. We sustain the fifth assignment; and think the instruction should have been to find for the plaintiff. We think if Michael Ringrose accepted the deed of February 8,1881, it was evidence to show the construction given to the deed of March 28, 1874, by all the parties, and should therefore have been received in evidence, and we therefore sustain the sixth assignment. For the purpose of showing the knowledge of the second deed by the defendant we think that deed should have been received in evidence with the other facts offered under the seventh assignment, and we therefore sustain that assignment. For a similar reason we sustain the tenth assignment. We do not sustain the fourth, eighth and ninth assignments. Judgment reversed and new venire awarded.