32 U.S. 596 (1833), Scott v. Lunt's Adm'r

Citation:32 U.S. 596, 8 L.Ed. 797
Party Name:RICHARD M. SCOTT, Plaintiff in error, v. EZRA LUNT's Administrator. [1]
Case Date:February 11, 1833
Court:United States Supreme Court
 
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Page 596

32 U.S. 596 (1833)

8 L.Ed. 797

RICHARD M. SCOTT, Plaintiff in error,

v.

EZRA LUNT's Administrator. 1

United States Supreme Court.

February 11, 1833

ERROR to the Circuit Court of the district of Columbia, and county of Alexandria.

This was an action of covenant, instituted in the circuit court for the county of Alexandria, by the plaintiff, against the defendant, to recover sundry annual rents alleged to be due from the defendant's testator to the plaintiff, under a deed executed by General George Washington and wife, of the one part, and the defendant's intestate, on the other part, by which a lot of ground, in the city of Alexandria, was conveyed to Ezra Lunt, his heirs and assigns, subject to the payment of an annual rent of $73, payable to General George Washington, his heirs, executors and assigns, on the 8th day

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of August in each year. The deed was made upon the 8th day of August 1799, and contained the following covenants:

'And the said Ezra Lunt, his heirs and assigns, does hereby grant unto General George Washington, his heirs and assigns, the said annual rent of $73, issuing out of the said hereby demised premises; and the said Ezra Lunt, his heirs and assigns, do hereby covenant, promise and grant, to and with the said General George Washington, his heirs and assigns, that he, the said Ezra Lunt, his heirs and assigns, will, yearly and every year for ever, well and truly pay the aforesaid sum of $73, unto the said General George Washington, his heirs and assigns, on the day and at the time appointed for payment as aforesaid; and also, that it shall and may be lawful for the said General George Washington, his heirs and assigns, at any and at all times after the said rent shall become due (if the same be not paid when demanded), to enter upon the said hereby-granted piece of land, and distress and sale make of the goods and chattels which may be thereupon found, to pay and satisfy such rent or rents, or part of a rent, as may remain due and in arrear. And it is further agreed, covenanted, conditioned and provided, by the said Ezra Lunt, his heirs and assigns, to and with the said General George Washington, his heirs and assigns, that if the said yearly rent of $73, or any part thereof, be behind or unpaid for the space of thirty days next after the same became due and payable, and sufficient goods and chattels of the said Ezra Lunt, his heirs and assigns, shall not be found upon the said hereby-granted premises, to pay and satisfy the same, that then it shall and may be lawful for the said General George Washington, his heirs and assigns, in and upon the said hereby-granted piece of land and premises to re-enter, and the same to hold again, repossess and enjoy, as if this present indenture had never been made, anything herein contained to the contrary thereof in any wise notwithstanding.' The deed also contained a covenant of general warranty.

On the 28th of August 1804, the executors of General Washington, by a deed of indenture, executed on that day, sold and conveyed to Henry Smith Turner, his executors, administrators and assigns, the annual rent of $73, issuing out of, and charged upon, the piece of ground conveyed

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to Ezra Lunt, 'to have and to hold the said annual rent of $73, unto the said Henry Smith Turner, his heirs and assigns,' &c. This deed recited the conveyance to Ezra Lunt at large.

On the 25th day of February 1808, Henry Smith Turner sold and conveyed the said ground-rent of $73, to the plaintiff in error. The conveyance, after reciting the deed from General Washington to Ezra Lunt, and that the said rent and the powers of distress and re-entry contained in the same, were, by the executors of General Washington, transferred to him, the said Henry Smith Turner, his heirs and assigns, by the deed of August 5th, 1804, proceeded as follows:

'Now, this indenture witnesseth, that the said Henry Smith Turner and Catharine his wife, for and in consideration of $600, to him, the said Henry S. Turner, in hand paid by the said Richard Marshall Scott, at or before the sealing and delivery of these presents, the receipt whereof he, the said Henry Smith Turner, doth hereby acknowledge, and thereof and of every part and parcel thereof doth acquit, release and discharge him, the said Richard Marshall Scott, his heirs, executors and administrators, by these presents, have given, granted, bargained, sold, aliened, assigned, transferred, set over and confirmed, and by these presents, do give, grant, bargain, sell, alien, assign, transfer, set over and confirm unto him, the said Richard Marshall Scott, his heirs and assigns for ever, that rent of $73, issuing out of that piece of ground, lying upon the north side of Prince street, and to the westward of Pitt street, in the town of Alexandria, granted by the said George Washington to the said Ezra Lunt, and by his executors conveyed and transferred unto him, the said Henry Smith Turner, and the powers of distress and re-entry, and all deeds and instruments of writing which relate to the reservation and transfer of the said rent, and every covenant, clause and stipulation contained in them, or any of them: To have and to hold all and singular the said premises, with their appurtenances, unto him, the said Richard Marshall Scott, his heirs and assigns, to the only proper use and behoof of him, the said Richard Marshall Scott, his heirs and assigns for ever.'

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To the declaration filed upon the covenant contained in the lease, for the payment of these rates, the defendant pleaded: 1st. That he had not broken the covenants in the declaration mentioned, and put himself on the country, and the said plaintiff likewise. The defendant afterwards filed a general demurrer to the declaration, which was overruled by the court, and the defendant then filed two additional pleas, viz: 2d. That he had fully administered, &c. 3d. That before the days in the declaration mentioned for the payment of said rent, that is to say, on the --- day of -----, in the year -----, the said plaintiff, under and by virtue of the said condition of re-entry in the said deed contained, did enter on the said premises thereby demised...

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