Hill v. Hill , 1863 Pa. LEXIS 15 ( 1863 )

The opinion of the court was delivered, by

Woodward, J.

This is a cross-writ of error to the same judgment as the above. After what has been said in the foregoing case, a few words will suffice to despatch' the errors assigned by the present plaintiff in error.

He points to a condition in restraint of alienation in the agreement of 12th July 1852, and in virtue of it denies that the receiver of R. & J. B. Hill could confer any title on J. B. Hill. The answer is two-fold. First, the condition was a restraint upon the parties, one of whom was James S. Negley and the other of whom was R. & J. B. Hill. The sale under which J. B. Hill purchased was not made by either of these parties, but was the act of the law. If this were not so, if it had been a release by Robert to James, do counsel mean that when Robert subsequently acquired Negley’s interest he could set up this covenant to defeat his own deed of release ? Surely not. Having either released his interest or permitted it to be divested by operation of law, it is not for Robert now to defeat the purchaser by alleging his own breach of covenant. But secondly, the condition related expressly to the “ respective premises” of the parties. It will be observed that Negley carved his lots into two parts, conveyed one part to R. & J. B. Hill and retained the other part. The parties covenanted that the one making the largest offer for the part of the other should at any time have the pre-emptive right, and that they would not sell their respective premises to any third party without the consent in writing of the other party. This was the covenant, and it would require a good deal of forcing to make it applicable to the engine, boilers, and stack. These were on Negley’s premises, and if the covenant apply to them at all, it would restrain Robert from buying out Negley, except for the benefit of R. & J. B. Hill. To give effect to the covenant in this case, we should have to treat Robert’s purchase as enuring to the benefit of his brother, a result which the argument did not mean to accomplish. The better view is, however, that the covenant has no application to the present subject of dispute.

The next point taken is that the articles of 12th July 1852, created the relation of landlord and tenant between Negley and the Hills; that Robert, by his purchase of Negley, became the landlord of James; and that the latter has forfeited his rights by disaffirming and impugning the title of his landlord. In support of which doctrine various authorities are cited.

Without discussing the authorities, we deny the premises altogether. We say there is not a word in the articles of 1852 to import an intention to establish the relation of landlord and tenant. There is neither demise, nor term, nor rent. It is a sale, out and out, of certain real estate with the privilege of enjoying the source of steam-power that had been planted on the unsold portion of the vendor’s premises. A corporeal and an incorporeal hereditament conveyed for a price, neither of which were leased for a rent. It is a mistake, therefore, to treat the case upon the law of landlord and tenant.

Another mistake is made when it is said that as Dawson & Newmyer were only tenants of Negley, they could not convey these fixtures for more than their term, and as they were not removed during the term they passed by the sale of Negley’s assignee to Robert Hill. Under the agreement of 31st December 1853, Dawson originally, and afterward Dawson, Newmyer & Co., and then Newmyer & Graff, were indeed Negley’s tenants of the Umpire Works, but were absolute purchasers of one-half of the machinery, tools, furnaces, &e., of the factory, and “ also one-fourth of engine, boilers, stack, and fixtures thereto belonging (the one-half thereof belonging to R. & J. Hill”). For reasons given in the former case, we consider the engine, boilers, and stack something more than mere fixtures, but whatever they were, they were not leased, but an undivided fourth was sold to Dawson, and from him passed to J. B. Hill. It is impossible, therefore, to see how the expiration of the term for which the Empire Works were leased can affect the title of J. B. Hill to the engine, boilers, and stack, which, always held by purchase and never by lease, are the bones of contention in this suit.

On the whole, we see as little reason for disturbing the judgment upon this writ of error as upon the former one, and therefore

The judgment is affirmed.