Warn v. Brown

• Decision Date: 05 March 1883
• Citation: 102 Pa. 347
• Parties: Warn <I>versus</I> Brown et al.
• Court: Pennsylvania Supreme Court

Page 347

102 Pa. 347

Warn versus Brown et al.

Supreme Court of Pennsylvania.

February 13, 1883.

March 5, 1883.

February 13th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. CLARK J., absent

ERROR to the Court of Common Pleas of Lycoming county: Of January Term 1883, No. 25.

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Henry Johnson and Robert P. Allen, for plaintiff in error, —Plaintiffs are estopped from denying original title in Allen, for title in this case was in Allen before it vested in Mary Doctor. At any rate the defendant claiming under the sheriff's vendee took a good conveyance, for he had no notice of the unrecorded conveyance: Keller v. Nutz, 5 S. & R. 251. The words of limitation are such as to vest a fee or an estate tail in Nathaniel Allen. The language used is not such as imports a particular estate for life, sufficient to vest a remainder in fee. No remainder is referred to. It is a present disposition of an estate for life to trustees named therein for the special use of the cestuis que trustent. By the habendum a fee is clearly created, for the words used are "to have and to hold to N. Allen and wife in trust for their heirs." A particular intent must yield to a general, if both cannot exist together: Doebler's Appeal, 14 Sm. 9. The deed expressly defines the grantor's intention to be that the children shall take only in the character of heirs, and from this, in connection with the whole deed, and particularly the habendum, the estate can only be construed as a fee in Allen, and is within the rule in Shelley's case. The words "in trust" are the governing words in this deed, and construction must be made on the entire deed: Ludwig v. Leonard, 9 W. & S. 48. A conveyance of land to A. in trust for the heirs of B., their heirs and assigns, is by force of the statute of Henry VIII., an immediate conveyance of the legal estate to the children: Leyburn v. Muench, 1 Pitts. R. 173. An account render would certainly lie here for the cestuis que trustent: Dennison v. Goehring, 7 Barr 175. The legal estate was at once executed in the cestuis que trustent: Dodson v. Ball, 10 Smith 493; Kay v. Scates, 1 Wr. 37. A cestui que trust may maintain ejectment: Warden v. Eichbaum, 2 Harris 127. But the statute of limitations is an absolute bar to the claim of the plaintiffs: Smilie v. Biffle, 2 Barr 52. The entry under the sheriff's deed was at least color of title and was adverse to interests of plaintiffs: Maus v. Maus, 30 Sm. 194. Thirty-one years' possession bars in every case: Weddle v. Robertson, 6 W. 486; Baldridge v. McFarland, 2 C. 339.

Clinton Lloyds, for defendant in error, presented no paper book.—The words for and during their lives, or the life of the longest survivor of them, plainly and clearly create a life estate. If a trust is created here, it is created in a very extraordinary and unusual manner. The habendum throws no such light upon its construction as that contended for on the other side. If the trust is to be for the use of Allen and wife for life, as plainly stated in the habendum, why have they not a trust to their own use for life? But the only true consistent construction of the deed gives Allen an estate for life, and for the life of his wife, should she survive him, remainder over to the children. Allen died in 1857, whereupon the right by possession vested in his wife, who held it until 1864, when she died, when the plaintiffs succeeded to a complete estate in fee of the land. As they could not maintain an action of ejectment until after the death of Hannah Allen, in 1864, the Statute of Limitations did not run against them prior to this date: Zacharias v. Zacharias, 11 Harris 452.

Mr. Justice GORDON delivered the opinion of the court, March 5th 1883.

This case turns entirely upon the construction of the deed of Mary Doctor to Nathaniel Allen and Hannah his wife, dated May 10th 1831. Beyond that part, therefore, of the learned judge's opinion which we have in the seventh assignment of error, we need not go, for if it be true that, under that deed Allen and wife took an estate, in the land in controversy, for their lives and the life of the survivor of them, with a vested remainder in fee to their children, then, since under the sheriff's deed, of March 22nd 1838, to Schuyler, the defendant held Allen's right, it must necessarily follow, that the plaintiffs, the remainder men, have no right of entry or action until his death, the Statute of Limitations could not begin to run, as to them, until that time: Ege v. Medlar, 1 Nor. 86.

If, however, the learned judge was mistaken in this view of the case; if by that deed Allen and wife took a fee in...