Berridge v. Glassey

• Decision Date: 05 April 1886
• Docket Number: 162
• Citation: 112 Pa. 442,3 A. 583
• Parties: Berridge and Wife v. Glassey
• Court: Pennsylvania Supreme Court

3 A. 583

112 Pa. 442

Berridge and Wife v. Glassey

No. 162

Supreme Court of Pennsylvania

April 5, 1886

Argued March 25, 1886

ERROR to the Court of Common Pleas, No. 4, of Philadelphia county Of July Term, 1885, No. 162.

Ejectment by Leeds K. Berridge and wife, in right of wife, against Jane Glassey, to recover possession of premises on Haverford street in West Philadelphia, containing in front sixteen inches, and in depth one hundred and fifty-three feet three inches, to Rockland street, on which it contains fifteen inches. The plea was, not guilty.

At the trial defendant disclaimed title to all but the Haverford street and Rockland street fronts, as to which trial was had.

The following are the facts as they appeared on the trial before ARNOLD, J.:

Leonard Frailey and Robert Glassey were the owners of adjoining lots of ground. Mr. Glassey built two houses, one fronting on Haverford street and the other on Rockland street. For some cause he built partly on Mr. Frailey's ground. Mr Glassey having died, leaving his property to his wife, the defendant herein, she, with Mr. Frailey, had a survey made when the amount of the encroachment was accurately known. Mrs. Glassey not wishing to tear the buildings down, and Mr Frailey not wishing to jeopardize his ownership by allowing her to retain possession, or to allow the use thereof without rent, they entered into the following agreement:

"Agreed the first day of December, of our Lord one thousand eight hundred and fifty-hine, between Leonard Frailey, of West Philadelphia, and State of Pennsylvania, of the one part, and Jane Glassey, the widow of the late Robert Glassey, who holds the estate of the said Robert Glassey, by will, of Philadelphia, and said State, of the other part, as follows: The said Leonard Frailey doth lease unto the said Jane Glassey, her heirs and assigns, a strip of ground whereon is erected a brick dwelling house, shed and privy, which the said Robert Glassey Did build over on the property or line of the said Leonard Frailey, fifteen and a half inches on the front of Havourford street, thence running forty-nine feet, more or less south, to the south side of the above said privy; Also an other strip of ground at the south end of said lot, which said Robert Glassey erected a frame house, over the line also of the said Leonard Frailey, of ten and a half inches, to the front of garden street, running twenty-seven feet more or less north. The above property situated in Mantua, West Philadelphia, Havourford and Thirty-fifth streets, and now occupied by Chas H. Rainier and others, for the term of Five years, from the first day of December next, for the yearly rent of Three Dollars, which said yearly rent the said Jane Glassey, doth for herself, her heirs and assigns, covenant and agree to pay to the said Leonard Frailey, his heirs and assigns, the said Rent.

"In witness whereof, we have here unto set our hands and seals, the day and year above written Three Dollars, mentiond above, to be redused to two Dollars, before signed it was don.

JANE her X mark GLASSEY. [Seal.]

LEONARD FRAILEY. [Seal.]

"Witnesses preasent:

CHR. BICHLER,

A. M. BICHLER."

This agreement, which is in the handwriting of Mr. Frailey, was neither acknowledged nor recorded, but was, like an ordinary lease, kept by him.

Rent was paid from time to time and indorsed on the agreement. It was sometimes called simply "rent," sometimes "two dollars on this lease," sometimes "rent of ground," sometimes "ground rent," sometimes "rent for ground built on my ground," and sometimes "rent on the within lease."

Mr. Frailey died, leaving the property to his daughter, Mrs. Berridge, plaintiff herein, who, not wishing to be bothered with so small an amount of annual rent, offered to sell to the defendant, but as they could not agree upon terms, notice to vacate was given more than three months before the expiration of a year, and on failure so to do this ejectment was commenced.

The court instructed the jury as follows: Gentlemen of the jury, I direct you to render a verdict for the defendant.

Verdict for the defendant.

A new trial was refused, ARNOLD, J., filing the following opinion:

The paper under which both parties claim, although inartificially drawn, is nevertheless an executed deed of conveyance, and not an executory agreement to convey, as the plaintiff contends. In species it is a perpetual lease. It contains all the essential parts of a deed, to wit, premises, habendum, reddendum and attestation. While the apt word to convey a fee is the word "give," yet other words will suffice where the intention of the parties is clear. The word "let" has been held sufficient: Krider v. Laferty, 1 Wharton, 303; and the words "limit and appoint": Shove v. Pincke, 5 Term R., 124; and "demise and grant," "remise, release and quit claim," "make over and grant," "convey," and "quit"; the rule of construction being that all deeds shall be construed to operate according to the intention of the parties, if by law they may; and if they cannot operate in one form, they shall in another, which, by law, will effect the intention: Greenleaf's Cruise on Real Property, tit. 32, ch. 20, § 33; Clanrichard v. Sidney, Hobart's Rep., 277; Good-title ex dem., Edwards v. Bailey, Cowper, 597; Troup v. Blodgett, 16 Johns., 172; McWilliams v. Martin, 12 S. & R., 269; and cases collected in Mr. Rawle's note to Williams on Real Property, * 179.

By the first clause or premises of the deed now under consideration, an estate in fee simple is conveyed. There is certainty in the names of the parties, the quantity of estate, and the thing granted. These elements constitute and complete the premises in every deed: 2 Blacks. Com., * 298. Nothing more is wanted in the premises of this deed to express the quantity of estate granted, which is an estate to the defendant, her heirs and assigns, that is, an estate in fee simple.

Then follows the clause: "The above property situated in Mantua, West Philadelphia, Havourford and thirty-fifth streets, and now occupied by Chs H Rainier and others, for the term of Five years from the first day of December next," &c. The only place and designation which the latter part of this clause can occupy is that of the habendum. If we regard the whole clause as recital, as its language imports, then we are confronted with the rule that a recital cannot control the plain words in the granting part of a deed: Huntington v. Havens, 5 Johns. Ch. R., 23; Chaplin v. Srodes, 7 Watts, 410; Marquis of Cholmondeley v. Lord Clinton, 2 Barn. & Ald., 625; Walsh v. Trevanion, 15 Ad. & Ellis, 734; Bailey v. Lloyd, 5 Russell, 330; Moore v. Griffin, 9 Shepley, 350. It cannot be regarded as a part of the premises, because the premises were completed before this clause was commenced. It is a different and distinct part of the deed, and must be regarded as in part recital, and for the rest as the habendum. That part of the clause which is properly the recital ends where the words "for the term of five years from the first day of December next" begin, and these must be regarded as the habendum. The habendum usually begins with the words "To have and to hold," &c., but the omission of those words will not deprive it of its name, place and use. In Watters v. Bredin, 70 P.S.R., 235, a clause in an inartificial deed beginning "Now the condition of this assignment is such," &c., was regarded as a portion of the habendum, and was allowed to have the effect of an exception, which may pare away a part of the grant: Stokely's Estate, 19 P.S.R., 476; but not the whole it: Shoenberger v. Lyon, 7 W. & S., 184. "The office of the habendum is properly to determine what estate or interest is granted by the deed; though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain or qualify, but not totally contradict or be repugnant to the premises": 2 Bl. Com., * 298. How it may lessen and qualify the estate, is shown by the instance of a deed to a man and his heirs, habendum to him and the heirs of his body, or vice versa, which in either case carries the fee; but while in the premises the estate conveyed is a fee simple, yet by the habendum it is qualified and lessened to an estate tail, with a fee simple expectant thereon: Id.; Co. Litt., 21 a; but if no estate is limited in the premises, and an express estate for years is limited in the habendum, this will qualify and abridge the general intendment of the premises, by which an estate for life would otherwise have passed: Co. Litt., 183 a; Cruise, tit. 32, ch. 21, § 80; Washburn on Real Property, 642. How it may enlarge the estate is shown by the case where an estate is given in the premises to the grantee for life, habendum to him and his heirs, in which case the grantee will take an estate in fee: Co. Litt., 299 a; but the habendum cannot increase or add to the thing granted: Cruise, tit. 32, ch. 21, § 73; Manning v. Smith, 6 Conn., 289. How it may explain the premises is shown in the case where the premises make the grantees joint tenants, while the habendum makes them tenants in common: Fisher v. Wigg, 1 P. Wms., 14; Bambaugh v. Bambaugh, 11 S. & R., 191; although the converse does not follow; for if the premises makes them tenants in common and the habendum makes them joint tenants, they still take as tenants in common: Galbraith v. Galbraith, 3 S. & R., 392; the reason being that joint tenancy is, at this day, so far from being favored that the courts think themselves justified in exercising their ingenuity against it; and because, in most instances, it operates contrary to the intent of the parties.

Where the habendum is repugnant and contrary to the premises, it is void, and the grantee will take...