Sampson v. Grogan

• Decision Date: 06 February 1899
• Citation: 21 R.I. 174,42 A. 712
• Parties: SAMPSON et ux. v. GROGAN.
• Court: Rhode Island Supreme Court

42 A. 712

21 R.I. 174

SAMPSON et ux.

v. GROGAN.

Supreme Court of Rhode Island.

Feb. 6, 1899.

Action by James Sampson and wife against Sylvester Grogan, executor of the estate of Margaret Grogan, deceased. Defendant having died since the commencement of the action, John H. Bagley, his administrator, assumes the defense. Judgment for the latter.

Gorman & Egan, for plaintiffs.

S. W. K. Allen, for defendant.

TILLINGHAST, J. This is an action of assumpsit, and is brought to recover the sum of $3,000, alleged to be the value of a dwelling house which was destroyed by fire during the time it was held by the defendant's testatrix, as life tenant thereof, under the will of Bernard O'Connell. The devise in said will to defendant's testatrix is as follows: "Second. I give and devise to my affectionate and beloved wife, Margaret O'Connell, my house and lot in the village of Wickford, in the town of North Kingstown, with all the privileges and appurtenances thereto belonging, for and during her natural life; she to keep the same in repair. At her decease I give and devise said house and lot to my niece Julia O'Connell; to her, her heirs and assigns, forever." The declaration alleges that immediately upon the death of said Bernard O'Connell the said Margaret O'Connell (afterwards Margaret Grogan), elected and decided to accept said devise, and entered into possession of said real estate, and a house then thereon standing, of the value of $2,000, and thereby assumed upon herself the obligation to keep said house in repair, and so promised and agreed to keep said house in repair during her tenancy, to wit, during the continuance of her natural life. It then avers that, while thus in possession of the premises, the house situated thereon was wholly destroyed by fire, and that it was the duty of said Margaret Grogan, under the terms of said devise, and of her promise made upon accepting the same, to rebuild said house, which she failed to do, notwithstanding the fact that she received the insurance money for the insurance which was upon said house when it was burned, whereby the plaintiff Julia Sampson, being the owner of the estate in remainder created by said devise, was damaged in the sum of $3,000, and has become entitled to have and recover the same of the defendant executor. Sylvester Grogan having deceased since the commencement of this action, John H. Bagley, his administrator, has assumed the defense thereof.

The defendant demurs to the declaration on the ground that, as a matter of law, it was not the duty of said Margaret Grogan, under the terms of said devise, to rebuild said house. We agree with the plaintiff's counsel that the action cannot be regarded as an action of waste or for damages, under the statute (Gen. Laws R. I. c. 268, § 1), but that it is based entirely upon the agreement of the life tenant to repair, created by the devise, and the life tenant's acceptance thereof. So that the ease turns upon the legal effect to be given to the language of said devise. But, while this is so, yet as the plaintiff's counsel, both in his elaborate brief and also at the bar, has carefully discussed the law of waste, and as the principles thereof are closely related to the main question involved, we will consider it.

The plaintiff's counsel argues that, even conceding that an action for waste, under the statute (Gen. Laws R. I. c. 268), cannot be maintained, because the injury by the disherison was caused by accidental fire, yet that the life tenant is liable for all waste; that the statute of this state is like the English statute of Marlbridge, in defining the liability, and like that of Gloucester in declaring a forfeiture and giving a double penalty.

By the ancient common law, not only might he that was seised of an estate of inheritance do as he pleased with it, but, also, waste was not punishable in any tenant, save only in three persons, namely, guardian in chivalry, tenant in dower, and tenant by the curtesy; and not in tenant for life or years. 4 Co. Inst. 299. The reason of the diversity, as stated by Blackstone, was that the estate of the first three above named was created by the act of the law itself, which therefore gave a remedy against them, but tenant for life or for years came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee, and, if he did not, it was his own fault. Cooley, Bl. Comm. bk. 2, p. 282; Tied. Real Prop. § 72; 4 Kent, Comm. (12th Ed.) *80; Countess of Shrewsbury's Case, 5 Coke, 13. Subsequently, in favor of the owners of the inheritance, St. 52 Hen. III. c. 23, known as the "Statute of Marlbridge," was passed, in A. D. 1267, section 2 of which provides as follows: "Also termors, during their terms shall not make waste, sale nor exile of house, woods and men, nor of anything belonging to the tenements that they have to ferm, without special license had by writing of covenant, making mention that they may do it; which thing, if they do, and thereof be convict, they shall yield full dam age and shall be punished by amerciament grievously." Under this statute the disability of committing waste was made an ordinary and general incident to all kinds of estates for life and for years (Tied. Real Prop, supra), and the actual damages sustained by the reversioner were recovered in an action of waste. 1 Washb. Real Prop. (5th Ed.) 158. Under the common law, as thus modified by the statute of Marlbridge, only single damages were recoverable by way of punishment for waste, except in the case of a guardian, who also forfeited his wardship, by virtue of the great charter. See St. 9 Hen. III. c. 4; Cooley Bl. Comm. bk. 2, p. 283. Thus the law remained until the passage of the statute of 6 Edw. I. c. 5, in A. D. 1278, known as the "Statute of Gloucester," which provides "that a man from henceforth shall have a writ of waste in the chancery against him that holdeth by law of England, or otherwise for term of life or for term of years, or a woman in dower; and he which shall be attained of waste shall lose the thing that he hath wasted, and moreover shall recompence thrice so much as the waste shall be taxed at." Our statute of waste above referred to is based upon the one last quoted. Under the law as it stood after the passage of the statute of Gloucester, not only tenants by the curtesy and in dower were held responsible for accidental fires at the common law, but tenants for life and years, created by the act of the parties, were also held responsible therefor as for permissive waste, under the last-named statute. 4 Kent, Comm. § 82. Under the language of this statute, that "he shall lose the thing that he hath wasted," "it hath been determined," says Blackstone, "that the place is included; that if waste be done sparsim, or here and there all over a wood, the whole wood shall be recovered, or, if in several rooms of a house, the whole house shall be forfeited, because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other." It was waste, under said statute, to pull down a house, or to suffer it to decay. If it was uncovered or ruinous at the commencement of the term, and the tenant suffered it to become more so; if he suffered the house to be burned by neglect or mischance; if it was uncovered by tempest, and he suffered it afterwards to decay; or even if glass or windows were broken,—he was liable for waste. In short, it seems that the only exception to the liability of the tenant for damages to the reversion was where the damage was caused by the acts of God and public enemies, and the acts of the reversioner himself. See Woodf. Landl. & Ten. 401 et seq.; 4 Coke, 536. "It is common learning," said Heath, J., in Attersoll v. Stevens, 1 Taunt. 198, "that every lessee of land, whether for life or years, is liable in an action of waste to his lessor for all waste done on the land in lease, by whomsoever it may be committed." Chambre, J., in the same case (page 196), said: "The situation of the tenant is extremely analogous to that of a common carrier. To prevent collusion (and not on the presumption of actual collusion), both are charged with the protection of the property intrusted to them, against all but the acts of God and the king's enemies; and as the tenant in the one case is charged with the actual commission of the waste done by others, so, in the other case, the carrier is charged with actual default and negligence, though he loses the goods by a force that was irresistible, or by fraud, against which no ordinary degree of care and caution could have protected him." Lord Coke is not less explicit for he says: "Tenant by the curtesy, tenant in dower, tenant for life, years, &c., shall answer for the waste done by a stranger, and shall take their remedy over." 1 Co. Inst. 54a. See, also, 2 Co. Inst. 145, 303; 4 Kent Comm. 77; 1 Co. Inst. 57a, note, 377; 3 Bl. Comm. 228; Com. Landl. & Ten. 188; 1 Gray, Cas. Law Prop. 560. The law of waste, as thus briefly outlined, continued in force in England until the passage of the statute of 6 Anne, c. 31, in A. D. 1707, which guarded the tenant from the consequences of accidental misfortune in case of fire, by declaring that no suit should be had or maintained against any person in whose house or chamber any fire should accidentally begin, nor any recompense be made by such person for any damage suffered or occasioned thereby. 4 Eng. St. at Large, p. 314 (10 Wm. III., Anne). This statute was afterwards enlarged by the statute of 14 Geo. III. c. 78, § 86, passed in 1774, so as to include stables, barns, or any other buildings on the estate. 8 Eng. St at Large, p. 397 (7 Geo. III.—18 Geo. III.). Speaking of the statute of 6 Anne, Chancellor Kent says: "Until this statute, tenants by the curtesy and in dower were responsible at common law for accidental fires; and tenants for life and years, created...