Clay v. Iseminger

• Decision Date: 21 July 1898
• Docket Number: 63
• Citation: 187 Pa. 108,41 A. 38
• Parties: Harry G. Clay, Administrator, etc., Appellant, v. Adam Iseminger, Defendant, and Elmer H. Rogers, terretenant
• Court: Pennsylvania Supreme Court

41 A. 38

187 Pa. 108

Harry G. Clay, Administrator, etc., Appellant, v. Adam Iseminger, Defendant, and Elmer H. Rogers, terretenant

No. 63

Supreme Court of Pennsylvania

July 21, 1898

Argued March 30, 1898

Appeal, No. 63, Jan. T., 1898, by plaintiff, from order of C.P. No. 1, Phila. Co., Dec. T. 1896, No. 240, discharging rule for judgment for want of a sufficient affidavit of defense. Affirmed.

Assumpsit for ground rent.

Rule for judgment for want of a sufficient affidavit of defense. Before CRAIG BIDDLE, P.J.

The averments of the affidavit of defense are stated in the opinion of the Supreme Court.

Error assigned was order discharging rule for judgment.

The judgment is affirmed.

George Henderson, for appellant. -- Section 7 of the act of April 27, 1855, does not apply to rents reserved before its passage, because such application would impair the contract Angell on Limitations, 37; Green v. Biddle, 8 Wheat. 1.

This is not a statute perfecting title by adverse possession Haines's App. 73 Pa. 169. Biddle v. Hooven does not rule this case.

Alex. Simpson, Jr., for appellee. -- The act of April 27, 1855, is constitutional: Korn v. Browne, 64 Pa. 55; Biddle v. Hooven, 120 Pa. 221; Wallace v. Church, 152 Pa. 258; Sharpless v. Phila. 21 Pa. 164; Terry v. Anderson, 95 U.S. 628.

Before GREEN, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE FELL:

The action was to recover arrears of ground rent reserved by deed dated January 4, 1854. In the affidavit of defense it was averred that no payment, claim or demand for the rent had been made by anyone for more than twenty-one years, and that within that period of time no declaration or acknowledgment of the existence of the rent had been made by anyone owning the premises. This brings the case directly within the provisions of the 7th section of the Act of April 27, 1855, P.L. 369, and the questions raised relate to the constitutionality of that section and to its application to ground rents reserved before its passage.

Both of these questions have been squarely presented and decided. The legislative intent to give the act a retroactive effect is apparent. In Korn v. Browne, 64 Pa. 55, which appears to be the first case in which the act was considered it was decided that as the act did not go into effect for three years the retroactive bar was constitutional. In Biddle v. Hooven, 120 Pa. 221, the constitutionality of the act was the only question raised, and it was held that, as the act merely operated to deprive the...