Fidelity Insurance, Trust & Safe Deposit Company of Philadelphia v. Fridenberg

• Decision Date: 18 May 1896
• Docket Number: 208
• Parties: The Fidelity Insurance, Trust & Safe Deposit Company of Philadelphia and John Howard Gibson, Trustees under the last Will of Henry C. Gibson, deceased, Appellants, v. Samuel M. Fridenberg, Solomon R. Fridenberg, and M. Samuel Fridenberg, trading as S.M. & S.R. Fridenberg & Co.; Samuel M. Fridenberg, Solomon R. Fridenberg, and Isaac S. Isaacs, Trustees under the Will of Louis E. Fridenberg, deceased; Edward F. Greathead and William C. Squibb, trading as Godfrey & Co.; Harry V. Varwig and George C. Varwig, trading as H. Varwig & Brother
• Court: Pennsylvania Supreme Court

34 A. 848

175 Pa. 500

The Fidelity Insurance, Trust & Safe Deposit Company of Philadelphia and John Howard Gibson, Trustees under the last Will of Henry C. Gibson, deceased, Appellants, v. Samuel M. Fridenberg, Solomon R. Fridenberg, and M. Samuel Fridenberg, trading as S.M. & S.R. Fridenberg & Co.; Samuel M. Fridenberg, Solomon R. Fridenberg, and Isaac S. Isaacs, Trustees under the Will of Louis E. Fridenberg, deceased; Edward F. Greathead and William C. Squibb, trading as Godfrey & Co.; Harry V. Varwig and George C. Varwig, trading as H. Varwig & Brother

No. 208

Supreme Court of Pennsylvania

May 18, 1896

Argued April 9, 1896

Appeal, No. 208, Jan. T., 1896, by plaintiffs, from judgment of C.P. No. 4, Phila. Co., June T., 1893, No. 420, on verdict for defendants. Affirmed.

Ejectment for a lot of land on the south side of Chestnut street above Ninth in the city of Philadelphia. Before WILLSON, J.

The facts appear by the opinion of the Supreme Court.

The court charged in part as follows:

[It is still claimed, as I understand it, that there was a breach of the condition by reason of the erection of the fire escape on the front end of the building beyond the line mentioned in the deed -- that is, beyond the line which fixed the northernmost building line of the property. Without entering into my reasons for doing so, I instruct you that in my opinion the plaintiffs have no cause of action based upon that ground; that it was not a breach of the condition for the defendants to put that property to all legitimate uses of a manufactory, and then if in that case, and because of that fact even, the public authorities instructed them to erect a fire escape, and they did so in obedience to those instructions, I do not consider that that amounted to a breach.]

[It is claimed on the part of the defendants that whatever rights the plaintiffs might have had at some time or another, or some people whose rights were anterior to theirs in point of time, earlier in the line of title, that those rights are now concluded, and that the defendants have a full and complete legal right to maintain whatever there may be there now which would have possibly constituted a breach of the condition at the time when the alleged breach first existed because they say that they have stood there for a period of twenty-one years. What I am doubtful about here is whether or not there is any satisfactory evidence as to twenty-one years having run in regard to these different items of alleged breach. It is undoubtedly the duty of the defendants to show to the jury -- to convince you -- to convince your reason -- your judgment -- that there have been twenty-one years in regard to all of these alleged breaches, or some of them before you would be permitted, and before you ought to draw a conclusion that the plaintiffs had lost whatever right they had in regard to such breaches by virtue of such lapse of time.

There is some testimony in the case which I think the defendants can use upon that point. I do not see that I can say that you cannot consider that testimony. Very likely it is true, as has been argued on the part of the plaintiffs, that that testimony, taken in connection with other testimony, can only reasonably be explained as applicable to something else than the main structure; that is very possible, but still there is testimony which I think I cannot help leaving to you, upon the question as to whether the pigeon house and the building in the rear stood there away back nearly as far as 1860, or shortly after that time. If it were so -- if the evidence upon that point satisfies your minds to that extent -- the plaintiffs could not recover. If these breaches have been breaches lasting for more than twenty-one years before the suit was brought, that would be an end of the plaintiffs' case. But if that is not so -- if your candid judgment be that twenty-one years did not run, and that these structures upon the ground had been put there within twenty-one years -- then that question drops out entirely, and should have no weight with you. You should not force it to have weight because you would like to. Now, as I have stated already, if the twenty-one years had run, that is an end of the case.]

[If the defendants found any sort of use of those buildings which stood upon the ground when they or their testator, the brother of these two Fridenbergs, purchased the property -- a use other than that which was permitted by the terms of the deed -- and there was nothing to indicate that objection had been made to that, then they were clearly entitled to permit a use which was of the same general character, or no worse in its nature and kind, than that which they found in existence at the time -- certainly until they had notice, and express notice, given to them that such a use of the property must terminate. I recollect no formal notice -- no express notice given by the plaintiffs to the defendants at any time, to cease any such manufacturing. I do not consider, and what I say now applies not only to the question of manufacture, but also to some other branches of the case, that the bill in equity which was filed, and which you have heard mentioned many times, itself served to operate as a notice to the defendants which terminated any rights that they otherwise had. It was the method which was adopted by the plaintiffs to carry out, to a certain degree at least, what they regarded as their rights, in which effort they failed. In my judgment, that effort which they made does not have any effect here one way or the other; it neither helps nor hurts them.

Passing the question of manufacture, and going to the buildings again, what is the view to be taken on that subject? But I do find this, that those structures remained there -- structures which were apparently in violation of the terms of the condition -- which were erected in breach of the plaintiffs' rights. I find that they remained there for a long time, and, so far as the evidence appears, without objection being expressed to the defendants. Now the question is, under such a state of affairs can the plaintiffs come in summarily and say, "Although these structures have stood there for a good many years without objection on our part, we now treat them as a breach, and you may hand back to us the property, convey it back to us, or it must be given back to us, through process of law?" I do not think the plaintiffs have that right. I think they were bound to demand that anything upon the property which had no business to be there -- I mean after a considerable lapse of time -- that any building or erection upon the property which was put there in breach of the condition contained in the deed should be removed within a time in which it could reasonably be done before they could enforce a forfeiture of the property and obtain the title to it. It appears that notice was given March 2, 1893, and that suit was brought June 2, 1893. I do not consider this notice a proper notice. I think the plaintiffs were bound to give to the defendants an opportunity to remove the forbidden structures, if there were such structures still existing, before they could enforce a forfeiture under the terms of the deed.]

Verdict and judgment for defendants. Plaintiffs appealed.

Errors assigned were (2-4) above instructions, quoting them.

The judgment is affirmed.

Geo. L. Crawford, of Crawford, Loughlin & Dallas, Harry G. Clay with him, for appellants. -- These restrictions create a conditional estate in Rockhill and his assigns without a clause for re-entry: Gray v. Blanchard, 1 Sharswood and Budd's Leading Cases in Real Property, 118 and 122-124; Bear v. Whisler, 7 W. 149; Clark v. Martin, 49 Pa. 289; 1 Am. Law Reg. N.S. 491; St. Andrew's Church App., 67 Pa. 512; Slegel v. Lauer, 148 Pa. 236; Muzzarelli v. Hulshizer, 35 W.N.C. 122; Kemp v. Sober, 1 Sim. Ch. N.S. 520; Clements v. Welles, L.R. 1 Eq. 200; Feilden v. Slater, L.R. 7 Eq. 523; Linzee v. Mixer, 101 Mass. 512; Tobey v. Moore, 130 Mass. 448.

They are by the terms of the grant expressly operative upon Rockhill's assigns, and would from their nature be so without express obligation, and are upon the face and in the line of the title: Clark v. Martin, 49 Pa. 289; Whitton v. Whitton, 38 N.H. 127; Rowell v. Jewett, 69 Me. 293; Barker v. Cobb, 36 N.H. 344; Cross v. Carson, 8 Blackf. (Ind.) 138; Reed v. Stouffer, 56 Md. 236; Univ. Soc. v. Dugan, 65 Md. 460; Gray v. Blanchard, 1 Sharswood & Budd's L.C.R.P. 119.

The right to enforce forfeitures for breach of the conditions passed to the plaintiffs: McKissick v. Pickle, 16 Pa. 140; Slegel v. Lauer, 148 Pa. 236; Hamilton v. Kneeland, 1 Nev. 60.

Laches is no defense as to future prevention if there be no estoppel: Menendez v. Holt, 128 U.S. 514; Soc. v. Low, 2 C.E. Green N.J. 20;

The conditions in this case are permanent and continuous. The waiver of one breach and forfeiture therefor is not a waiver of a recurring breach of a continuous condition, or a waiver of the condition or of a conjoined condition: 1 Smith L.C. Am. ed. 1885, 121; 1 Sh. L.C.R.P. 147; Hamilton v. Kneeland, 1 Nev. 60; Becker v. Werner, 98 Pa. 555.

The equity suit was only a suspension, not a waiver, of the right to forfeiture, and not a waiver of the conditions or breaches, and certainly not of the breach in erecting and maintaining the fire escape after the equity suit was brought and its testimony taken: Manice v. Millen, 26 Barb. 42; Taylor on L. & T. secs. 498, 500, 501; Doe v. Brindley, 4 B. & Ad. 84; Doe v. Jones, 5 Exch. 497; Few v. Perkins, L.R. 2 Exch. 92-95; Alexander v. Hodges, 41 Mich. 691; Doe v. Woodbridge, 9 B. & C. 376; Stuyvesant v. Mayor, 11 Paige Ch. 414; Croft v. Lumley, Ellis, B. & E. 1069; Clough v. L. & N.W.R. Co., L.R. 7 Exch. 26-34.

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