Pennsylvania Co. for Insurance on Lives & Granting Annuities v. Singheiser

Opinion by Mr. Justice Brown, The issue in the court below was framed under the act of June 11, 1897, P. L. 119, to determine whether an irredeemable ground rent had been extinguished by operation of law. A vedict was directed in favor of the owner of the land, the defendant in the issue, but subsequently judgment was entered in favor of the appellees, the present owners of the ground rent. In a deed from James Smith to Andrew Singheiser, dated February 15, 1800, and duly recorded, an irredeemable ground rent of two hundred Spanish milled dollars per annum, which is the subject of this controversy, was reserved in the lot of ground conveyed, situated on the west side of Third street, in the city of Philadelphia. On May 8, 1858, Richard McAvoy conveyed the lot to his daughter, Rosanna Gibson, wife of Alfred C. Gibson, subject to the said ground rent, to which the said Alfred C. Gibson acquired title on the 21st day of the same month. Mrs. Gibson died October 12, 1871, having given, by her will, a life estate to her husband in all her property, with remainder over to her descendants. She also gave him a power of sale. He died December 7, 1900, having, during all the interval, retained possession of the premises, subject to the ground rent, without exercising the power of sale, and, upon his death, Cecelia E. Crilly, a granddaughter of Mrs. Gibson, became the owner of the property. The last payment of the semi-annual rent was made , to Gibson’s predecessor in title on February 18, 1858, and appellant’s contention, as stated by her counsel, is [245] “that the twenty-one years in this case began to run from the time of the last semi-annual payment of the ground rent, to wit: February 18, 1858, and having once begun to run was not stopped by the subsequent transfer of the land to Mrs. Gibson or of the ground rent to Mr. Gibson, and by virtue of the provisions of the seventh section of the act of April 27, 1855, P. L. 368, the ground rent became extinguished on the 18th day of February, 1879.” The seventh section of the act of 1855 provides that “in all cases where no payment, claim or demand shall have been made on account of, or for any ground rent, annuity or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, subject to such ground rent, annuity or charge, a release or extinguishment thereof shall be presumed, and such ground rent, annuity or charge shall thereafter be irrecoverable.” It is first to be noted that, when Alfred C. Gibson acquired title to the ground rent, there was no payment due upon it, and nothing was demandable until August 18, 1858, the next semi-annual payment period fixed in the deed from Smith to Singheiser. But on that date Mrs. Gibson was the owner of the land, having acquired title to it in the previous May, and her husband could not have enforced payment from her of the semi-annual payment then due, for she held the title as his wife to the land charged with the rent. She so held the title until her death on October 12, 1871, and during that period of more than thirteen years any demand by the husband upon her for payment of the rent would have been vain and useless, for he could not have enforced his demand by an action against her. To this appellant makes answer that the act of 1855 makes no exception in favor of any one. This is true, but it is further true that nothing in that act contravenes the rule in force with us that the unity of persons which prevent^ [246] a wife from maintaining an action against her husband also prevents a husband from maintaining an action against her: Gracie’s Estate, 158 Pa. 521. On grounds of public policy, the law discountenances controversies between husband and wife and encourages inaction as to claims inter sese during the existence of the marital relation. But, aside from this, it is well contended by counsel for appellees that the manifest intention of the husband in acquiring the ground rent a few days after his wife had acquired title to the land was to keep them both in the family, not, however, with any intention on his part to merge both in her, else he would have had the deed for the ground rent made directly to her. If such was his intention, the presumption naturally follows that he, in effect, donated the ground rent to her as it accrued from time to time. We are clear that the act of 1855 has no application from February 18, 1858, to the date of Mrs. Gibson’s death, and we come to the period during which her husband was in possession of the property as life tenant under her will. This period extended from October 12, 1871, to December 7, 1900. Among the papers that came into the hands of Gibson’s executor was an envelope containing his deed for the ground rent. On this envelope there was the following endorsement in his handwriting: “This ground rent is on property No. 820 and 822 and 824 North 3rd, running through to Charlotte street, to be collected at my death.” Below that is written: “Ground rent debt $200 per annum to Thomas Williams, trustee. A. C. Gibson.” The endorsement is without date, but it is admitted that it was written some time after January 1, 1874. It was excluded by the trial judge, and this was properly held to have been error by the court in banc. While the endorsement may not have been a declaration or acknowledgment of the existence of the ground rent “by the owner of the premises subject to” it, it was an acknowledgment of the existence of the ground rent by the life tenant of the [247] property, upon whom there rested the burden of paying the semi-annual rents during his life estate, and, on the other hand, it is to be regarded as a claim made by him, as the owner of the ground rent, that it was in existence, but, for a manifest reason, not to be collected until his death. It was a declaration by him that, when the ground rent should, upon his death, pass to another, the payments which he had not exacted from himself while he, as life tenant, was in possession and enjoyment of the property out of which the rents were payable, should be made by those who, after his death, would come into possession and enjoyment of the land. While he lived he was, as life tenant, the payer, and, as owner of the ground rent, the payee. The hand that was to pay was the hand that was to receive, and to hold that the ground rent must be presumed to have been extinguished, because he did not leave behind him some evidence that, at some time during the last twenty-one years of his life, he had, as life tenant, taken the rent out of one of his pockets and put it in another, to pay himself as the owner of the ground rent, would be to require an uttterly vain, useless and foolish thing, never demanded by the law and certainly not contemplated by the act of 1855. Lex neminen cogit ad vana seu inutilia. The assignments of error are overruled and the judgment is affirmed.