Wallace v. Harmstad

• Decision Date: 06 May 1863
• Citation: 44 Pa. 492
• Parties: Wallace <I>versus</I> Harmstad.
• Court: Pennsylvania Supreme Court

Page 492

44 Pa. 492

Wallace versus Harmstad.

Supreme Court of Pennsylvania.

May 6, 1863.

ERROR to the District court of Philadelphia.

E. S. Miller, for plaintiff in error.

J. A. Phillips, for defendant in error.

The opinion of the court was delivered, May 6th 1863, by WOODWARD, J.

It is not to be doubted that the cases of Arrison v. Harmstad, 2 Barr 191, and Wallace v. Harmstad, 3 Harris 462, do decide that by reason of the fraudulent alteration of the deeds, reserving the ground-rent in question, neither an action of debt or covenant would lie on any one of the deeds for recovery of the rent, nor is it recoverable in an action on the verbal contract under which possession was obtained, nor in any action for use and occupation of the premises. Setting aside all the obiter dicta of those cases, they clearly established these several conclusions, grounding them all on the policy of the law which altogether forbids parties from tampering with written instruments or deeds, and which, in its application to the deed in question here, avoids the covenant reserving rent in favour of the fraudulent grantor, but preserves the fee simple to the innocent grantee, discharged from the covenants in the deed. When it was said in the argument of the first of the above cases that equity would reform the instrument in favour of a purchaser, Chief Justice Gibson replied, "Show a case; the deed is dead, and equity cannot put life into it."

The stern ruling in those cases was applied without hesitation to a bonâ fide purchaser of the ground rent without notice of the fraud, so that, as far as concerns Arrison, and all persons claiming under him, the part of the deed which was intended to enure to his benefit, may indeed be said to be dead. It was not merely a voidable instrument, it was void. It was called a forgery, and treated as such, and neither law nor equity would tolerate it even in the hands of an innocent purchaser.

The question presented now is whether a ground-rent so emphatically condemned, and denied all remedy, both at law and equity, can be enforced by distress. Mrs. Wallace having executed a distress, was sued in this action of replevin, when she avowed for rent in arrear, as reserved by one of the four deeds which were the subjects of animadversion in the above-cited cases. Her learned counsel does not impugn those cases, but he seeks to parry the authority of them by a distinction so nice as to be highly creditable to his acumen, even if it be not well founded in law. Let me try to state it distinctly.

He says that a ground-rent reserved in a deed by a grantor is an estate which vests in him the instant the fee simple in the land vests in the grantee; that that estate is a rent-service; that it continues to exist though the instrument reserving it be destroyed; and that a right of distress is one of the necessary legal incidents of the estate. Then he argues that the plaintiff's distress was not by virtue of the deed, but was founded on the intrinsic and essential qualities of the estate in the grantor, and that the reference to the deed in the avowry was only for the purpose of defining the estate and the amount of the rent.

I think the defect of the argument will be found to consist in the third proposition. Not that it is untrue as a general position that a vested estate will survive the instrument of its creation, but that the position is too broadly stated when it is made to include an incorporeal hereditament which lies in grant, and can only exist by virtue of a deed, devise, or record, or by prescription, which is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo: 2 Black. 266.

That ground-rent is a rent-service was demonstrated in Ingersoll v. Sergeant, 1 Wh. 337, a case which has been so often recognised and followed as to have become a rule of property. Rent-service was the only kind of rent originally known to the common law; a right of distress was inseparably incident to it so long as it was payable to the lord who was entitled to the fealty; and it was called a rent-service because it was given as a compensation for the military or other services for which the land was originally liable. When a rent was granted out of lands by deed, the grantee had no power to distrain for it, because there was no fealty annexed to such grant. To remedy this inconvenience an express power of distress was inserted in grants of this kind, and it was thence called a rent-charge, because the lands were charged with a distress. Rent-seck, or barren rent, is in effect nothing more than a rent for the recovery of which no power of distress is given, either by rules of the common law or the agreement of the parties: 1 Co. Lit. (Thomas' ed.) star p. 443, in note, and 2 Black. (Sharswood's) 42, and note. Blackstone ranks all these rents as incorporeal hereditaments, and Coke, commenting on Littleton's distinction between feoffments and grants, says, here is implied a division of fees into corporeal, as lands and tenements which lie in livery, comprehended in this word feoffment, and may pass by livery with or without deed, and incorporeal, which lie in grant, and cannot pass by livery but by deed, as advowsons, commons, &c.: 2 Coke Lit. (Thomas' ed.), star page 333. Rent belongs to this category, and is implied by Lord Coke's "&c.," and is indeed the most perfect illustration of an incorporeal hereditament, for it issues directly out of the thing corporate, without being any part of it.

But suppose the deed by which an incorporeal hereditament was granted be lost or destroyed, must the grantee lose his estate? Lord Chief Justice Eyre answers this question in Bolton v. The Bishop of Carlisle, 2 H. Black. 263, where he says, "In pleading a grant the allegation is that the party at such time did grant, but if by accident the deed be lost, there are authorities enough to show that other proof may be admitted; the question in that case is whether the parties did grant? To prove this, the best evidence must be produced, which is the deed, but if that be destroyed, other evidence may be received to show that the thing was once granted." So in Reed v. Brookman, 3 T. R. 151, where a lost release of an annuity was pleaded without profert, the King's Bench sustained the plea and overruled the demurrer to it.

These cases, and others cited in the argument to the same effect, assert nothing more than a rule of evidence in very familiar practice with us, that secondary evidence will be received where the party shows it is out of his power, without any fault of his, to produce the primary, but they establish no exception to the general rule that incorporeal estates must be evidenced by a grant. If the best evidence of the grant cannot be had, the next best will be received; but the result of the evidence must be to establish the grant. Even when an easement is to be sustained by prescription, or a right of way by necessity, a grant is presumed from long enjoyment of the easement, or from the necessity for the right of way, and thus again the result of the evidence is to establish the grant. So true is the maxim that incorporeal hereditaments lie only in grant.

But what is to be said to a party who is unable to produce the original grant because he has himself fraudulently altered it? Shall he or his alienee be permitted to go into secondary evidence? When the law has refused him all its forms of action on such a mutilated instrument, will it allow him to take redress into his own hands and levy a distress for himself? This would be to reverse the maxim, in odium spoliatoris, omnia prœsumuntur. In accordance with the maxim, we ought rather to presume that he never had a grant, and therefore no estate which carried with it the incidental right of distress.

It is apparent that this view of the case places the plaintiff in error upon the Arrison deed just as much as she stood upon it in her former action of covenant, and it has been suggested, not in forgetfulness that it is not the position chosen for her by her counsel, but by way of showing that his main proposition was too broadly stated for the case in hand, and that, holding only an incorporeal hereditament, he cannot get her case away from the deed. It seems to me that her right of distress must be judged by the deed, and that the deed is no more available for this purpose than it was for the actions of debt and covenant.

But now let the case be looked at from another stand-point. By the common law, before the statute of quia emptores (18 Edw. 1, c. 1, A. D. 1290), according to the text of Littleton, "if a man made a feoffment in fee simple, by deed or without deed, yielding to him and his heirs a certain rent, this was a rent-service, and for this he might distrain of common right; and if there were no reservation of any rent, nor of any service, yet the feoffee held of the feoffor by the same service as the feoffor did hold over of his lord next paramount." Upon which latter clause, beginning with the words "and if there were no reservation," Lord Coke's comment is, "This is evident, and agreeth with our books that in this case the law created the tenure," and on the words "by deed or without deed," he observes, "for all rent-services may be reserved without deed; and at the common law, if a man made a feoffment in fee by parol, he might upon that feoffment reserve a rent to him and his heirs; because it was a rent-service, and a tenure thereby created:" 1 Thomas' Co. Litt. star p. 444.

Rent-service, then, was an essential element of the feudal tenure. It did not depend on contract, it resulted necessarily out of the grant of the feud. The services which the vassal was bound to perform were indeed declared by the lord at the time of the investiture in the presence of the other vassals: 1 Cruise's Digest 9, and were assented to of course by the vassal; but as these were to a great extent uncertain, they could not be...