Richard Scott v. Ezra Lunt

• Decision Date: 01 January 1833
• Parties: RICHARD M. SCOTT, Plaintiff in error, v. EZRA LUNT's Administrator. 1
• Court: U.S. Supreme Court

32 U.S. 596

7 Pet. 596

8 L.Ed. 797

RICHARD M. SCOTT, Plaintiff in error, v. EZRA LUNT's Administrator.¹

January Term, 1833

ERROR to the Circuit Court of the district of Columbia, and county of Alexandria.

This was an action of covenant, instituted in the circuit court for the county of Alexandria, by the plaintiff, against the defendant, to recover sundry annual rents alleged to be due from the defendant's testator to the plaintiff, under a deed executed by General George Washington and wife, of the one part, and the defendant's intestate, on the other part, by which a lot of ground, in the city of Alexandria, was conveyed to Ezra Lunt, his heirs and assigns, subject to the payment of an annual rent of $73, payable to General George Washington, his heirs, executors and assigns, on the 8th day of August in each year. The deed was made upon the 8th day of August 1799, and contained the following covenants:

'And the said Ezra Lunt, his heirs and assigns, does hereby grant unto General George Washington, his heirs and assigns, the said annual rent of $73, issuing out of the said hereby demised premises; and the said Ezra Lunt, his heirs and assigns, do hereby covenant, promise and grant, to and with the said General George Washington, his heirs and assigns, that he, the said Ezra Lunt, his heirs and assigns, will, yearly and every year for ever, well and truly pay the aforesaid sum of $73, unto the said General George Washington, his heirs and assigns, on the day and at the time appointed for payment as aforesaid; and also, that it shall and may be lawful for the said General George Washington, his heirs and assigns, at any and at all times after the said rent shall become due (if the same be not paid when demanded), to enter upon the said hereby-granted piece of land, and distress and sale make of the goods and chattels which may be thereupon found, to pay and satisfy such rent or rents, or part of a rent, as may remain due and in arrear. And it is further agreed, covenanted, conditioned and provided, by the said Ezra Lunt, his heirs and assigns, to and with the said General George Washington, his heirs and assigns, that if the said yearly rent of $73, or any part thereof, be behind or unpaid for the space of thirty days next after the same became due and payable, and sufficient goods and chattels of the said Ezra Lunt, his heirs and assigns, shall not be found upon the said hereby-granted premises, to pay and satisfy the same, that then it shall and may be lawful for the said General George Washington, his heirs and assigns, in and upon the said hereby-granted piece of land and premises to re-enter, and the same to hold again, repossess and enjoy, as if this present indenture had never been made, anything herein contained to the contrary thereof in any wise notwithstanding.' The deed also contained a covenant of general warranty.

On the 28th of August 1804, the executors of General Washington, by a deed of indenture, executed on that day, sold and conveyed to Henry Smith Turner, his executors, administrators and assigns, the annual rent of $73, issuing out of, and charged upon, the piece of ground conveyed to Ezra Lunt, 'to have and to hold the said annual rent of $73, unto the said Henry Smith Turner, his heirs and assigns,' &c. This deed recited the conveyance to Ezra Lunt at large.

On the 25th day of February 1808, Henry Smith Turner sold and conveyed the said ground-rent of $73, to the plaintiff in error. The conveyance, after reciting the deed from General Washington to Ezra Lunt, and that the said rent and the powers of distress and re-entry contained in the same, were, by the executors of General Washington, transferred to him, the said Henry Smith Turner, his heirs and assigns, by the deed of August 5th, 1804, proceeded as follows:

'Now, this indenture witnesseth, that the said Henry Smith Turner and Catharine his wife, for and in consideration of $600, to him, the said Henry S. Turner, in hand paid by the said Richard Marshall Scott, at or before the sealing and delivery of these presents, the receipt whereof he, the said Henry Smith Turner, doth hereby acknowledge, and thereof and of every part and parcel thereof doth acquit, release and discharge him, the said Richard Marshall Scott, his heirs, executors and administrators, by these presents, have given, granted, bargained, sold, aliened, assigned, transferred, set over and confirmed, and by these presents, do give, grant, bargain, sell, alien, assign, transfer, set over and confirm unto him, the said Richard Marshall Scott, his heirs and assigns for ever, that rent of $73, issuing out of that piece of ground, lying upon the north side of Prince street, and to the westward of Pitt street, in the town of Alexandria, granted by the said George Washington to the said Ezra Lunt, and by his executors conveyed and transferred unto him, the said Henry Smith Turner, and the powers of distress and re-entry, and all deeds and instruments of writing which relate to the reservation and transfer of the said rent, and every covenant, clause and stipulation contained in them, or any of them: To have and to hold all and singular the said premises, with their appurtenances, unto him, the said Richard Marshall Scott, his heirs and assigns, to the only proper use and behoof of him, the said Richard Marshall Scott, his heirs and assigns for ever.'

To the declaration filed upon the covenant contained in the lease, for the payment of these rates, the defendant pleaded: 1st. That he had not broken the covenants in the declaration mentioned, and put himself on the country, and the said plaintiff likewise. The defendant afterwards filed a general demurrer to the declaration, which was overruled by the court, and the defendant then filed two additional pleas, viz: 2d. That he had fully administered, &c. 3d. That before the days in the declaration mentioned for the payment of said rent, that is to say, on the ___ day of _____, in the year _____, the said plaintiff, under and by virtue of the said condition of re-entry in the said deed contained, did enter on the said premises thereby demised, for non-payment of certain rent then in arrear and unpaid, and held and occupied the same as vested in him by the said entry as his absolute estate, &c. To these pleas there was a general replication and issues. After these issues were joined, the plea fully administered was withdrawn, and the cause went before the jury upon the first and second pleas as above stated.

The plaintiff gave in evidence the deed or lease from General Washington and Martha his wife, to Ezra Lunt, and the conveyances of the executors of General Washington, and Henry Smith Turner.

The defendant then gave evidence to prove that, upon the settlement of the administration account by the defendant upon the estate of his testator, there was a balance in the hands of the administrator of $149; which he, the defendant, under the order of the orphans' court, distributed among the next of kin of the deceased, in the year 1812; no demand having been made upon him, as administrator, for said rent, previously to this suit. The defendant then gave in evidence to the jury, a deed from the original lessee, Ezra Lunt and his wife, to James Boyd, and a deed from James Boyd to Jonathan Schofield, by which deeds, it was admitted, that the premises upon which the said rent was charged had been duly conveyed to him, Jonathan Schofield.

The defendant then offered Jonathan Schofield as a witness in the said cause, to prove that the said plaintiff had made a re-entry upon the premises in question. The said Schofield proved, that he had held the premises in question, from the time he obtained a deed from them, that is to say, from the 4th of November 1817, to the latter end of the year 1820; that towards the close of 1820, the plaintiff pressed him for the rents then due upon the premises, and threatened to re-enter upon them, if the rent was not paid; that in the year 1819, the said plaintiff and himself had a conversation in relation to the said rent, in which the plaintiff threatened to re-enter upon the premises for the non-payment, and that the said Schofield had, on his part, in the said conversation, declared his total inability to make payment, and that, at the plaintiff's request, he agreed, that the plaintiff should take possession of the premises, and do what he pleased, in consequence of the non-payment of the said rent; that in the end of the year 1820, he received a letter from the plaintiff, on the same subject, and that the letter produced by the latter, was written by him in answer thereto; that after this, he understood, that the said plaintiff had re-entered on, and taken upon himself, the management of the said premises, and he supposed, that he meant no longer to look to him for the rents, and, in fact, that he had re-entered upon the premises; that from the year 1819 to the present time, he had had nothing to do with the premises, nor had any claim been made against him for the rent. It was admitted, that, during all this time, that is to say, from January 1821, to the present time, the said Jonathan Schofield was wholly insolvent.

The defendant then examined a witness, one Barton Lynch, who gave evidence to prove, that about the beginning of the year 1821, the plaintiff engaged him to labor for him at $73 a year, and the plaintiff informed him that he was entitled to a ground-rent upon the premises in question, of $73; that if he would collect this rent, he might do so, and apply it to his (the plaintiff's) credit, on account of his labor, and that he might, so far as the plaintiff had any concern in the premises, do whatever he pleased toward renting and making the most of the property; that he did not mean to re-enter upon the property; that he immediately turned his attention, and found two families living upon it; that, under an authority from the plaintiff, he entered on and repaired the...