Korn v. Browne

• Decision Date: 10 January 1870
• Court: Pennsylvania Supreme Court
• Parties: Korn <I>versus</I> Browne.

Page 55

64 Pa. 55

Korn versus Browne.

Supreme Court of Pennsylvania.

January 4, 1870.

January 10, 1870.

January 4th 1870.

Before THOMPSON, C. J., READ and SHARSWOOD, JJ. AGNEW, J., at Nisi Prius

Error to the Court of Common Pleas of Philadelphia: No. 417, to January Term 1869 J. M. Arundel, for plaintiff in error, referred to Act of April 27th 1855, § 7, Pamph. L. 369, Purd. 654, pl. 11. "In all cases where no payment, claim or demand shall have been made on account of or for any ground-rent, annuity or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises subject to said ground-rent, annuity or charge, a release or extinguishment thereof shall be presumed, and such ground-rent, annuity or charge shall thereafter be irrecoverable: * * * Provided, that this section shall not go into effect until three years from the passage of this act." That construction of a statute which favors public convenience is to be adopted: Stormfeltz v. Turnpike Co., 1 Harris 560; Kerlin v. Bull, 1 Dall. 178. No statute of limitations or lapse of time discharges a ground-rent: St. Mary's Church v. Miles, 1 Whart. 229. Legislation on kindred subjects may be resorted to in aid of the interpretation of a statute: Com. v. Penna. Ins. Co., 1 Harris 166. A retrospective law which does not impair the obligation of a contract is not unconstitutional: Underwood v. Lilly, 10 S. & R. 101; Tate v. Stooltzfoos, 16 Id. 37; Taggart v. McGinn, 2 Harris 157; Lycoming v. Union, 3 Id. 166; Journeay v. Gibson, 6 P. F. Smith 57. The onus of proving payment was on the plaintiff: Foulk v. Brown, 2 Watts 214.

M. Arnold, Jr., for defendant in error.—The onus of proving payment was on the defendant: Foulk v. Brown, and Act of 1855, supra; Act of February 26th 1869, Pamph. L. 3. Laws should be construed to be retrospective, only when they are imperative: Taylor v. Mitchell, 7 P. F. Smith 211; Lingelfelter v. Ritchey, 8 Id. 485; Building Association v. Hecker, 3 Phila. Rep. 494; Neff's Appeal, 9 Harris 243; Reiser v. Savings Fund, 3 Wright 137; Elliott v. Lyell, 3 Carr (Va.) 278; Helmere v. Shuter, 2 Shower 17; Gilmore v. Shooter, 2 Modern 310; Sturges v. Crowninshield, 4 Wheat. 122. There is no limitation as to ground-rents: St. Mary's Church v. Miles, supra; Bronson v. Kinzie, 1 How. 319; Corporation v. Wallace, 3 Rawle 109; Webster v. Cooper, 14 How. 488.

The opinion of the court was delivered, January 10th 1870, by READ, J.

But one question has been argued in this case, whether the 7th section of the Act of the 27th April 1855 has a retrospective as well as a prospective operation with regard to ground-rents.

"After a lapse of twenty years, bonds and other specialties, merchants' accounts, legacies, mortgages, judgments, and indeed all evidence of debt excepted out of the statute, are presumed to be paid. The court will not encourage the laches and indolence of parties, but will presume, after a great length of time, some compensation or release to have been made." "The rule of presumption, when traced to its foundation, is a rule of convenience and policy, the results of a necessary regard to the peace and security of society."

The lapse of twenty years, without demand of payment, is evidence from which a jury may presume payment of the arrears of ground-rent. "Those only," says Mr. Price, "who are accustomed to make or read briefs of title in Philadelphia, going back to the times of the first settlement, know how frequently occur ancient rent-charges and ground-rents, which the owners of the present day never heard of, and which generally have no doubt been honestly extinguished; while making this note the writer has such a single brief before him for an opinion, in which no less than three such charges occur as blemishes, grants or reservations more than a century ago, which no person living has any knowledge of."

"The law raises a legal presumption that a mortgage on which interest has not been paid for twenty years has been paid, and bars the recovery; and why should a ground-rent have a greater immunity against the presumption of extinguishment?"

It will be observed that all these considerations apply most strongly to existing evils, where no payment, claim or demand had been made for thirty, forty, fifty or one hundred and fifty years, on account of or for any ground-rent, and it was a grievance which, after the lapse of three years, the 7th section of the Act of 1855 was intended to put an end to. The act was "to amend certain defects of the law for the more just and safe transmission, and secure enjoyment of real and personal estate."

It was a clear defect in the law,...