Smith v. Townsend , 32 Pa. 434 ( 1859 )

The opinion of the court was delivered by

Strong, J. —

The sole question raised by this record is, whether the title offered to the defendant below and plaintiff in error is a fee simple, clear of all trusts and encumbrances, except the proportionate part of a twelve pounds ground-rent. It is queried, indeed, whether this question is really presented; whether the plaintiff in error is not liable, at all events, for his bid, inasmuch as the sale was effected under an order of the Orphans’ Court. Without inquiring, however, how that may be, we prefer resting our judgment upon the validity or invalidity of the title offered, especially as that was the question reserved in the District Court.

The title is derived from Deborah Morris, who, in 1793, devised the property, being a lot in the city of Philadelphia, to Phoebe Morris for life, with a remainder over for life, remainder in fee; and, under the will of the testatrix, it has ever since been held. This is sufficient to raise a presumption that the title was in Deborah Morris at the time of her death, and a conclusive presumption as to every one except the Commonwealth. And even as against the Commonwealth, after enjoyment by a private person for such a length of time, there is a presumption of a grant. This is especially true, in regard to the earlier settled portions of the state, and pre-eminently in Philadelphia, where most of the lands were granted by the proprietaries before the divesting act. In contests between individuals, this presumption becomes final after thirty years’ continuous possession: Act of 14th April 1855, Pamph. L. 225. It cannot be doubted, therefore, that Deborah Morris held a fee simple in the property at her death in 1793.

By her will, she imposed upon the devisees of the lot, and upon the subsequent owners thereof, a restriction against building, or suffering any building 'to be erected, on the garden spot on the south end of her dwelling-house (this being the property, the title to which is now questioned), or opening, or suffering to be opened, if they could in anywise prevent it, an alley through the court in which her dwelling-house was situated. She declared the devise to be on that “express condition,” and added, that in caso of failure to perform this condition she gave the property over to Nicholas Wain and eleven others, in fee, in trust for a charitable use. It is urged, that this restriction against building still remains, and that, consequently, there is an encumbrance upon the property.

The will of the testatrix passed the entire fee simple in the property. No interest was left undisposed of. There was no reversion in Mrs. Morris or in her heirs. Of course, notwithstanding the language of the will, the fee devised to Wain and others was not an estate on condition, for the benefit of a condition can only be reserved to the grantor or devisor, or to his heirs. On breach of the condition, the grantor, or the heirs of the devisor, may enter and terminate the estate on condition. Only they can do it. But when nothing is reserved by the grantor or devisor; when the whole estate is granted or devised, as where there is a limitation over in fee to a third person, in case of a breach of the condition, there can be no right of entry. Nor is the devise over to Wain and others a contingent remainder, because the precedent estate was a fee simple, and as the fee simple is the whole estate, even though a base fee, there was nothing left to constitute a remainder. Not being then an estate on condition, nor a contingent remainder, it is necessarily a conditional limitation, and must take effect, if at all, as an executory devise: Fearne. on Rem. 399.

Regarding, then, the limitation over to Wain and others as an executory devise, is it valid ? The condition upon which its coming into existence was made to depend was, that a building should be erected on the garden lot, or an alley opened or suffered to be opened through the court, &c. The contingency contemplated might not occur during any number of successive lives — might never occur. The rule, however, is that a limitation over is too remote, if it must not take effect within a life or lives in being, and twenty-one years and nine months thereafter. The question is not whether it may take effect within that period, but whether it must. If it must not “ ex necessitate,” then it is void as too remote, and tending to perpetuity. Tried by this rule, the limitation over to Wain and others was absolutely void.

But if the devise over be void on account of its remoteness, or for any reason, then the earlier devisees necessarily took the lot as if the condition or restriction had never been attempted to be made; took it discharged of the condition: 1 Jarman on Wills 783; Smith on Executory Interests 699, 700; Proprietors of the Church in Brattle street v. Green et al., 3 Gray 142, and the cases therein cited.

Whether the testatrix, after having given a fee simple in the lot to the earlier devisees, could, as a condition subsequent, impose upon them a restriction against using the property devised for buildings, we do not care to inquire. Without expressing any opinion upon that subject, we hold that the limitation over on failure to perform the condition is void, and consequently, that the first takers took the estate discharged from the restriction.

No interest in it was limited to any others than to the executory devisees. It was not a privilege given to the public or to the neighbourhood; nor was it an easement given to the devisees of tbe other house, or other half of the garden lot. Cross-easements are out of the question in the case. The testatrix, by her devise over, has defined for whose benefit the condition was imposed. She contemplated no other penalty for a breach than a transmission of the property to her executory devisees.

This view of the case renders unnecessary any examination of the conveyance and release by the trustees, Williamson and Evans, under order of the' Orphans’ Court. Such a conveyance was superfluous, for the estate of the first devisees was unaffected by the attempted restriction.

The next objection urged against the title is, that the petition under which the order of sale was obtained was defective, in that it made no reference to the restriction already noticed, and that it did not call into court the necessary parties. The sale was under the Act of 1858, entitled “ An act relating to the sale and conveyance of real estate,” an act eminently useful in disentangling titles to land, and in rendering ownership of real estate valuable. It ought to receive a reasonable construction, so as to carry out the legislative intent. The declared object of the legislature was to make the titles which pass under it fees simple absolute, indefeasible by any person or persons having a present or expectant interest in the property sold, and discharged from all liens. Moreover it is provided, that the title shall not be prejudiced by any error in the proceedings of the court. Tet it is undoubtedly true, that no one having a present interest can be affected by a proceeding under it, unless made a party; nor, perhaps, are contingent remainders or executory devises cut off, unless the title be explained in the petition, and the purpose be expressed, to bar any entailment, and defeat contingent remainders or executory devises. But in the present case, reference to the building restriction was entirely unnecessary, if for no other reason, certainly for this, that it had no legal efficiency, as has been shown. The only remaining inquiry, therefore, is whether all the necessary parties were brought in. It wmuld protract this opinion to an unreasonable length to recite the whole chain of title, from Deborah Morris down, and it would be useless. We have examined it carefully, and we are of opinion that there was no omission. We are unable to discover that there is any interest in Charles M. Cooper, Joseph B. Cooper, Jr., Richard M. Wistar, or Elizabeth Wistar.

As, therefore, the Orphans’ Court undoubtedly had jurisdiction of the subject-matter, and as all persons who had any present or expectant interest were before the court, and as the decree was conclusive upon them, it follows that the title offered to the defendant below was perfect.

The judgment is affirmed.