Trust Co. v. Hodges

Opinion by W. D. Porter, J., From seventy years prior to the date at which the instalment for which this action is brought became due, the defendant and those under whom he claims had regularly paid ground rent to the plaintiff and its predecessors in title. The defendant now seeks to escape further payments upon the theory that the ground rent was not reserved at the time of the grant of the land to Charles Hodges by Louis Desauque, on April 29, 1826 ; it is, therefore, only necessary to consider the effect of the agreement between Louis Desauque and Charles Hodges, and the formal deed conveying the fee and reserving the ground rent executed by the heirs of Louis Desauque and Moses Young, in whom the rights of Charles Hodges under the agreement had become vested. But the lot in question was sold at sheriff’s sale as the property of Charles Hodges, and conveyed to Wilkinson by sheriff’s deed, dated January 10, 1829. On February 6, 1829, Wilkinson conveyed the lot to Moses Young subject to the payment of a yearly ground rent of 132.00 payable on the 29th days of April and October unto Louis Desauque, his heirs and assigns. At that time the record showed the legal title to be in Louis Desauque and there was nothing upon the record to show any interest whatever of Charles Hodges' in the land. The equitable title continued in Moses Young and he regularly paid the ground rent for over forty years. By sundry mesne conveyances, each one of which made the grant subject to the payment of this ground rent, the title of Moses Young has become vested in the defendant. The defendant thus had notice by every conveyance through which [304] he derived title that, to the point at which his record title disappeared, his estate in the land was subject to the payment of a ground rent to Louis Desauque and his heirs. This was not a case of an innocent purchaser without notice being misled by the record; there was a break in the chain of title and immediately after that break the record was consistent throughout, and the estate which came to the defendant was made subject to the payment of a ground rent to the party in whom the record showed the legal title to be vested, and to his heirs. After such a long-continued and consistent series of conveyances and payment of ground rent in accordance therewith, the existence of a deed creating the ground rent must be presumed: Heckerman v. Hummel, 19 Pa. 64; Wallace v. The Church, 111 Pa. 164. In the absence of any evidence other than that to be found in the conveyances through which the defendant’s title comes, and the payment of rent in accordance therewith, the defendant would, therefore, be held liable for this ground rent; but long after the estate of Moses Young in the premises had become thus fixed for the ground rent, an agreement and deed came upon the record and made clear the manner in which the title to the land had become burdened with the ground rent. The first consisted of articles of agreement, dated April 29, 1826, between Louis Desauque and Charles Hodges, reciting that the former had agreed to let and the latter had agreed to take upon ground rent, upon the terms and conditions set forth, the lot in question. In determining whether this instrument was an immediate conveyance or only an executory contract, we must look for the intention of the parties, to be gathered from every part of the contract. The agreement did not purport to convey the land and contained no words of present assurance. It contained a provision for the conveyance'of the title at a subsequent time, upon the performance of a stipulated condition: it was clearly executory: Stokely v. Trout, 3 Watts, 163; Stouffer v. Coleman, 1 Yeates, 393; Williams v. Bentley, 3 Casey, 301; Stewart’s Administrators v. Lang, 37 Pa. 201. This was not a conveyance of land, it was merely an agreement to convey at some future time and left the whole legal title in Louis Desauque: Moroney v. Copeland, 5 Whart. 407. Under the terms of this agreement Charles Hodges undertook to erect a house [305] upon the land and upon compliance with that condition he and his heirs and assigns became entitled to a conveyance subject to the ground rent, and this equitable title passed under the sheriff’s sale to Wilkinson. The latter in his deed to Moses Young recognized the title of Louis Desauque and conveyed subject to it. Young continued to hold under his equitable title, and the legal title remained in Louis Desauque and his heirs until May 29, 1867, when by deed by and between the heirs of Louis Desauque, to whom his title had descended, and Moses Young, in whom the equitable title of Charles Hodges had vested, the covenants of the original article of agreement were executed and the legal title became vested in Moses Young subject to the ground rent which was reserved by proper formal covenants. . The learned court below very properly entered judgment in default of a sufficient affidavit of defense. Judgment affirmed. William W. Porter, J., dissents.