Hipple v. Rice

• Decision Date: 01 January 1857
• Citation: 28 Pa. 406
• Parties: Hipple versus Rice.
• Court: Pennsylvania Supreme Court

28 Pa. 406

Hipple versus Rice.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Perry county.

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Watts and Miller, for plaintiff in error, contended that the whole contract was void, and cited the Act of 17th February, 1762, declaring all lotteries "public nuisances." They cited and relied upon the case of Seidenbender v. Charles, 4 S. & R. 151. It is asking the court to aid in carrying out the illegal and prohibited contract.

Junkin, for defendant in error.—Ground-rents are real estate: Cobb v. Biddle, 2 Harris 444. The ground-rent reserved is only a part of the real estate remaining in the grantor: Stewart v. Wolveridge, 2 M. & S. 83; Walker v. Physick, 5 Barr 204. The ground-rent was never sold — it is therefore unaffected by the lottery. The parties themselves executed the contract, and the court will not unravel it: Lestapies v. Ingraham, 5 Barr 81; Fox v. Cash, 1 Jones 211; Ex parte Bulmer, 13 Ves. 316. He may recover if the action be not expressly on the contract: 4 Burr. 2069, Faikney v. Renous; Petrie v. Hannay, 3 T. R. 419.

The opinion of the court was delivered by ARMSTRONG, J.

Abraham Landis being the owner of 116 acres of land in Perry county, he signed and made public the following document: —

"Articles of agreement between Abraham Landis and the purchasers of tickets for the drawing of lots to be by him laid out in the manner hereinafter mentioned, on his tract of land in Tyrone township, &c. Said Abraham Landis is to lay out 72 lots, beginning at the great road, &c. * * Every purchaser of a ticket or tickets for the drawing of a lot or lots, shall be entitled to receive a ticket or tickets upon their signing this article and paying three pounds for each ticket, which ticket, when drawn, shall be entitled to the number or lot drawn against its number, for the making of a good and sufficient deed of conveyance (subject to the yearly ground-rent of one dollar, now valued at seven shillings and six pence). I, the said Abraham Landis, do hereby bind myself, and we the purchasers of tickets do hereby obligate ourselves to build a house two story high on the front of each lot, which building, or some other house of such height, on some part of such lot as such purchaser may choose, always leaving room for building two story houses on the front of said lots, or higher if they see cause; and also in all such buildings there must be no other than stone or brick chimneys; and further, we, the said purchasers, do each of us bind ourselves to make a building of some of the aforementioned description within the space of three years from the drawing of the lots, otherwise to give up and quit all claim to such lot or lots as are not so improven and built upon; and of the time of drawing said lottery, I, the aforesaid Abraham Landis, do undertake to give public notice by advertisement, at least three weeks before the drawing of the lottery." Recorded 3d Nov. 1806.

At the drawing of the lottery, John Bigler drew lot No. 13 in the town of Landisburg, for which Abraham Landis executed and delivered to him a deed on the 9th of November, 1807. The deed is in accordance with the article of agreement. It recites the title — describes the lot — acknowledges the receipt of the consideration-money, "three pounds," for one ticket in the above-mentioned lottery, and contains this additional clause: "It is further covenanted and agreed by the said John Bigler, for himself, his heirs, executors, administrators, or assigns, to and with the said Landis, his heirs, executors, administrators, or assigns, that he or they will pay, or the said lot is subject to the payment of the yearly ground-rent of one dollar," &c.

James Rice, the plaintiff below, now holds a regular chain of conveyances from Landis for this claim to quit-rents. And Hipple, by a regular chain of conveyances, holds the title of John Bigler to lot No. 13.

The Act of 17th of February, 1762, declares that "all lotteries whatsoever, whether public or private, are common nuisances, and against the common good and welfare of this province." The claim for quit-rents in the present case is resisted on the ground that the agreement under which Bigler purchased his ticket, and at the drawing of the lottery became entitled to lot No. 13, and deed received by him in pursuance of it, all constituted but a lottery scheme, which came within the purview of the statute, and is prohibited by law. Whether this defence is sound as applied to the facts of this case, is...