Berry v. McMullen
| Decision Date | 26 December 1827 |
| Parties | BERRY v. MCMULLEN. |
| Court | Pennsylvania Supreme Court |
IN ERROR.
One who owns the equitable interest in land, who is in the constructive possession, and may receive the income of it, is liable in covenant, as assignee, for a groundrent charged thereon, although the legal title be in another, and no trust appear by deed.[a]
WRIT of error to the Court of Common Pleas of the county of Philadelphia.
Covenant by the plaintiff, Peter L. Berry, against the defendant Joseph McMullen, to recover the sum of thirty dollars, being a half year's ground-rent, due the 18th of April 1821 issuing out of a lot of ground situate at the corner of Chestnut and Juniper streets in the city of Philadelphia. The evidence on both sides consisted of different conveyances of the lot and the ground-rents issuing out of it, together with admissions by the parties of certain facts.
On the 18th day of April 1812, the lot on Chestnut and Juniper streets, being then owned by Edward Burd and Edward Shippen Burd, was conveyed to Robert Mercer and Joseph McMullen their heirs and assigns, by Messrs. Burd, reserving a ground-rent, to them, of $120 per annum, payable half-yearly on the 18th day of the months of April and October, in each and every year, which Mercer and McMullen by express covenant contracted to pay. On the 22d of April 1817, Joseph McMullen and wife released all the moiety of McMullen in the land to Robert Mercer, his co-grantee, subject to the payment of the rents and the performance of the covenants in the deed from the Messrs, Burd to them; by this operation, Robert Mercer became the sole proprietor of the lot. On the 22d day of December 1818, Robert Mercer and wife conveyed the lot to Berry, the plaintiff, in consideration of one dollar paid and of the performance of the covenants of the indenture, among which was an express covenant by Berry to pay the paramount ground-rent to the Messrs. Burd, and an additional ground-rent of $60 per annum to the said Robert Mercer, his heirs and assigns for ever.
On the 25th day of August 1819, Robert Mercer, being in failing and insolvent circumstances, assigned, among other things, his interest in the ground-rent, reserved from the lot, by his deed to Berry of the 25th of December 1818, to Joseph McMullen and Michael Nesbit, in trust for his creditors. On the 20th of November 1820, Joseph McMullen, the defendant, and Michael Nesbit, assignees of Robert Mercer, for the consideration of ten dollars, conveyed the ground-rent of $60 per annum to Jane Berry, a daughter of the plaintiff. Miss Berry, subsequently, and before the bringing of this suit, died intestate, and without issue; and by the intestate laws of this commonwealth, this ground-rent, so owned by her, accrued to her father, Peter L. Berry, the plaintiff. Some time in 1820, the precise time not being stated, the lot itself was levied upon at the suit of a creditor of Mr. Berry, and sold by the sheriff, by virtue of a writ of venditioni exponas, at public sale, for $45. At the sale, Mr. McMullen, the defendant, bid for the property, and on its being struck off to him, signed the usual conditions of sale, the name of no other person being then mentioned by him as interested in the purchase.
A few days afterwards, he came to the sheriff's office with Mr. George Mercer, and requested the sheriff to make the deed to him, Mr. George Mercer; the latter gentleman paid the purchase-money, and on the 1st of November 1820, received a deed for the lot from the sheriff, subject to the two ground-rents of $120 and $60 per annum. From receipts, produced upon notice by the defendant, it appeared, that he had, during the years 1823 and 1824, paid the paramount or larger ground-rent of $120 to Mrs. McPherson, who had derived title to it through the Burds. Upon the lot there was a partial erection of a building, which was in a dilapidated condition, having been abandoned for some time.
The plaintiff contended--1. That in point of fact, McMullen was the real purchaser of the lot at the sheriff's sale; that George Mercer was a mere trustee for him; that he was the cestui que trust, the person beneficially interested in the purchase. 2. That these facts being established, it is competent for Mr. Berry, the plaintiff, to maintain this action of covenant against McMullen for the privity of estate, the plaintiff being the owner of the ground-rent, and the defendant the owner of the soil.
Charge of the Court. The question of fact, whether George Mercer was a mere trustee for the defendant is a matter for your peculiar and exclusive cognizance, and the court are not disposed to entrench upon your duties, by pressing any positive opinion upon you they may have formed as to how far the evidence supports this position of the plaintiff. The able advocate of the plaintiff supposes that the facts of the defendant having bid at the sale, and signed the conditions, and paid the paramount ground-rent to Mrs. McPherson, the proprietor, are conclusive as to his being the real owner of the land, and of Mr. George Mercer being, in his language, " a man of straw." This, however, does not appear so very clear to the court; these acts are of a very equivocal character. In practice, it is very common for one man either to bid for another, or to substitute another person as purchaser by subsequent arrangements. The fact of the payment of the paramount ground-rent by Mr. McMullen is more so; he was one of the original grantees of the lot, to whom the Burds conveyed it, and was bound by his express covenant to pay the rent to the Burds, or their assigns, in whosoever hands the land might be. These facts, however, are not without weight, and if they, in any respect, go to establish that Mercer was a mere trustee of McMullen (and you are the only judges of this part of the case), then the other question made by the plaintiff's counsel arises, and upon which the court are called upon to express an opinion by both of the parties.
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