Monbar, Inc. v. Monaghan

• Decision Date: 20 June 1932
• Citation: 18 Del.Ch. 395,162 A. 50
• Court: Court of Chancery of Delaware
• Parties: MONBAR, INC., a corporation created by and existing under the laws of the State of Delaware, v. FRANCIS T. MONAGHAN

162 A. 50

18 Del.Ch. 395

MONBAR, INC., a corporation created by and existing under the laws of the State of Delaware, v. FRANCIS T. MONAGHAN

Court of Chancery of Delaware, New Castle

June 20, 1932

BILL FOR SPECIFIC PERFORMANCE of contract for sale of land. The contract obligates the complainant to sell and the defendant to purchase a lot and dwelling located at the southeast corner of Fifteenth and Market Streets, Wilmington, Delaware. The contract calls for "a good and marketable title" in fee simple, free of all liens and incumbrances.

The defendant's defense is that the deed tendered to him does not convey such a title.

Heard on bill, answer and testimony of witnesses taken before an examiner.

Decree for the complainant.

David J. Reinhardt, for complainant.

David J. Reinhardt, Jr., for defendant.

OPINION

THE CHANCELLOR:

If the title to land be in doubt, whether because of a question of law or of fact, a court of equity will not compel a vendee to take it. Brown, et ux., v. Davis, 15 Del.Ch. 37, 131 A. 142; Rehoboth Heights Development Co. v Marshall, 15 Del.Ch. 314, 137 A. 83.

Where the title to be conveyed is a "good and marketable" one, it need not necessarily be a perfect one of record. It may rest upon a presumption, provided the presumption be such that if the question were before a jury, it would be the duty of the judge to give a clear direction in favor of the fact and not to leave it with the jury for consideration under the evidence. Cases supra.

The complainant's title is questioned on two grounds. These are first, that it is not a good and marketable one in fee simple; and second, if it is, it is encumbered by the lien of a ground rent.

The following are the facts of record:

Joseph Shipley, being seised in fee of the premises in question, on November 11, 1800, demised the same to one Samuel File, his executors, administrators and assigns, for the term of two thousand years, upon an annual rental of ten dollars and seven cents without deduction for taxes, etc., payable on the twenty-fifth day of March in every year during the existence of the term.

File entered into possession and continued so until the time of his death intestate in 1834. Thereafter, on June 20, 1835 his heirs at law, his administrator not joining, by deed conveyed the premises to Dr. James W. Thompson, his heirs and assigns, upon the consideration of seven hundred and fifty dollars. This deed conveyed also adjoining land held by File in fee. It recited File's title to the land as being derived from a lease from Shipley "on ground rent for the term of two thousand years, from and after the twenty-fifth day of March, A. D. 1801, under and subject to the yearly rent or sum of ten dollars and seven cents." The deed conveyed to Thompson "subject to the ground rent."

Thompson on November 11, 1850, conveyed the land by way of mortgage to Susan Vansciver, her heirs and assigns, to secure the payment of a bond for one thousand dollars. The mortgage makes no mention of the annual rent payable to Shipley, nor of any so-called ground rent chargeable against the land.

Susan Vansciver foreclosed the mortgage, secured a sale on a writ of pluries levari facias on July 3, 1867, and the sheriff made his deed to the purchaser, one Cornelia Vansciver. The sheriff's deed poll conveyed the land to Cornelia Vansciver, her heirs and assigns. Like the mortgage it makes no mention of an annual rent chargeable against the land in any way.

Cornelia Vansciver, on May 31, 1876, conveyed the premises to Charles L. Gabke, his heirs and assigns, "for and in consideration of Seventeen hundred dollars less one hundred and sixty-eight dollars of a ground rent the interest of which is to be paid annually to the heirs of Joseph Shipley." This is the only language found in the deed relating to the rent.

On December 26, 1881, Gabke conveyed the premises in fee to his daughter, Mary E., "for and in consideration of Two Thousand Dollars ($ 2,000.00) * * * less one hundred and sixty-eight Dollars of a ground rent, the interest of which is to be paid annually to the heirs of Joseph Shipley." No other language appears in this deed referring to rent.

On September 23, 1890, Mary E. Gabke reconveyed the premises in fee to her father, Charles L., and to her mother, Annie E., as tenants by the entirety. The consideration was the same as in the preceding deed and the way of describing it was the same, including the reference to rent.

Charles L. Gabke died. Then his wife died intestate. Thereafter on January 7, 1931, all her heirs at law joined in conveying the premises to the complainant in fee simple in consideration of fifty-five hundred dollars. This deed makes no mention of rent reserved in favor of Shipley, or those deriving under him.

The foregoing is all that the records show as constituting the chain of the complainant's title. It is apparent that so far as the records show the fee simple title has never passed out of Joseph Shipley, or those succeeding in his right. All that Joseph Shipley disposed of was a term for years, with the reversion in him and his heirs and assigns.

That which his lessee, File, acquired was a lease for years. There being no statute in this State to the contrary, the law permitted the lease notwithstanding its length of two thousand years. 1 Tiffany, Real Property (2d Ed.) § 39; 16 R. C. L. p. 608, par. 88; 35 C. J. 973. A lease is personal property and as such on the death of the lessee devolves, not upon the lessee's heirs, but upon his personal representative. 16 R. C. L. 536, par. 8; 35 C. J. 970. When, therefore, the heirs of File undertook in 1835 to convey a fee simple title to Dr. Thompson, they undertook to convey something which their ancestor never possessed. Title to the lease could have been passed only by File's administrator. At this point, therefore, a break in the chain of title to the lease appears, and that break has never been repaired as a matter of record. It is further to be noted that the heirs of File in referring to the lease as being held from Shipley "on ground rent" used language that was technically inaccurate. There are so far as I am advised only two forms of ground rent known to American law--the one is found in Pennsylvania and the other in Maryland. The latter takes the form of a perpetual lease, usually for ninety-nine years perpetually renewable with reservation of an annual rent. So far as I know the Maryland form has never been used in this State. The form of ground rent, however, used in Pennsylvania, of which Delaware was once a part, has, especially in earlier times, been frequently the subject of creation in this State and has been recognized by at least two cases found in the law reports. Brown v. Pierce, 29 Del. 326, 6 Boyce 326, 99 A. 530; Braunstein v. Black, 21 Del. 300, 5 Penne. 300, 62 A. 1091. The Pennsylvania form of ground rent consists of a grant in fee simple with the reservation of an annual rent in favor of the grantor and his heirs.

In Dougherty v. Flemming, 23 Del. 278, 7 Penne. 278, 79 A. 104, reference is repeatedly made in the case stated to a "ground rent," notwithstanding it was, as in this case, a rent payable yearly on a two thousand year lease. Such a rent, as before observed is not a technical ground rent; it is simply a rent charge founded upon a conveyance under which the relation of landlord and tenant is created. 28 C. J. 839. I suppose the Superior Court in Dougherty v. Flemming, supra, when it used the expression "ground rent" in its order (no opinion is reported) did so to make its order conform to the recitals in the deeds and to the case stated, without meaning to indicate...