Bird v. Stilley , 1 Del. 339 ( 1834 )

The Court.

This woman is divorced to all purposes, but that of marrying again during the lifetime of John Stilley. She had the power to release this annuity. Deed admitted.

The plff. then proved a release from Mrs. Stilley to the holders of two other parts of the land charged; and, after bearing the defts.’ counsel, the court stopped Wales from replying for plff.

They stated to the jury that there was one point which settled the case. This suit arose out of a distress by Mrs. Stilley for twenty-nine years arrears of an annuity or rent charge bequeathed to her by her former husband, Thomas Cartmell, and charged upon lands devised to his four sons, William, Thomas, George and Joseph. The plff. in replevin has given in evidence a deed from Thomas Cartmell, jr. and Susanna Stilley (the deft.) to Henry Guest, for one fourth of the land charged with this annuity, to wit: the share of Thomas Cartmell, the younger, one of the devisees. This deed bears date the 12th April, 1812; and, after reciting the rent charge of $40, on the whole tract it conveys the one-fourth part of that tract to Guest, and releases to him, generally, all rents issuing out of it, and particularly discharges and releases it from the one fourth part of this annuity. This release of a part operates in law as a release of the whole; and it will not be necessary for the jury to examine the question which has been principally considered in the argument, whether Mrs. Stilley has not, in point of fact, released the whole of this annuity, for it is a well established principle, that if rent be charged upon a tract of land and the grantee release any portion of the land charged, it is a release of the whole; (5 Bac. Ab’dg. 694.) and on this principle the deft, has released the whole of these lands, and the plff. in replevin must have a verdict.

Wales, Gilpin and J. JL. Bayard, for plaintiff. R. H. Bayard, for defendants.

Quere. Was this a rent charge such as could be distrained for under the act of assembly? (8 vol. 218.) If so, all annuities charged on land must be the subject of distress though no clause of distress be added to the grant. The court was not called on to decide this question, it was therefore not examined.