Easby v. Easby

Opinion by Mr. Justice Fell, This action was brought against the executors of the grantee of the covenantor in a ground rent deed to recover the arrears [431] of rent which accrued during the time she held the title to the land. Several grounds of defense were presented at the trial, but none of them was based upon the Act of June 12, 1878, P. L. 205, nor was the attention of the court called to the act. The claim of exemption from liability based on the provisions of the act is now set up for the first time, but it is fairly raised by the second and fourth specifications of error. Whatever doubt upon the subject may have existed before the passage of the Act of April 25, 1850, P. L. 571, that act gave to the owner of the ground rent the right to bring covenant against the assignee of the lessee for rent accruing during his title. This right against the grantee of real estate subject to ground rent is taken away by the act of 1878, unless the grantee of the land has by agreement in writing or words in the deed of conveyance assumed a personal liability for the rent. Sec. 1 of the act provides: “ That grantee of real estate, which is subject to ground rent or subject to mortgage or other incumbrance, shall not be personally liable for the payment of such ground rent, mortgage or other incumbrance, unless he shall, by an agreement in writing, have expressly assumed a personal liability therefor, or there shall be express words in the deed of conveyance, stating that the grant is made on condition of the grantee assuming such personal liability; Provided, that the use of the words ‘ under and subject to the payment of such ground rent, mortgage or other incumbrance ’ shall not alone be so construed as to make such grantee personally liable as aforesaid.” There can be no doubt of the application- of the act to the case before us, and it is conclusive against the right of the plaintiff to -recover. The second and fourth assignments of error are sustained and the judgment is reversed.