Sachse v. Myers , 1900 Pa. Super. LEXIS 371 ( 1900 )

Rige, P. J.,

Opinion by (after stating the facts and reciting the provisions of the Act of June 12,1878, P. L. 205, and the provisions of the order for a reargument):

No point is made of the fact that part of the plaintiff’s claim was for rent that had accrued prior to the date of the defendant’s deed. It was admitted by his counsel at bar that he was the equitable owner during the six months prior to January 1, 1898, and we were asked to dispose of the case as if it appeared by the pleadings that he was the owner during all the period covered by the claim. Therefore, the third question suggested in the order for reargument need not be passed upon nor discussed.

There can be no doubt of the application of the act of 1878 to the case of a grantee of land subject to ground rent reserved in a deed executed since the passage of the act. This was decided in Easby v. Easby, 180 Pa. 429. It is equally well settled that the act does not apply to the case of a grantee whose deed was executed before the passage of the act: Merriman v. Moore, 90 Pa. 78; Hopple v. Hutchinson, 44 W. N. C. 441; Miller v. Kern, 7 W. N. C. 504. Whether or not it applies to the case of a grantee in a deed, executed since the passage of the act, of land which was subject to ground rent reserved before its passage is the first question to be decided in the present case.

It is urged that the construction given to the act in the case of Hollenberger v. Yaukey, 145 Pa. 179, rules this question in the affirmative. A careful examination of that case has led us to a different conclusion. There was scarcely room for dispute that the charge in favor of Samuel Foreman was merged in his title. There was a question, however, whether or not by the assignee’s sale and subsequent conveyances it had not been resuscitated. As we understand the case it was more particularly with reference to the effect of these last mentioned proceedings, all of which were after the passage of the act of 1878, that Mr. Justice McCollum: was speaking when he said, that, “ if a charge existed as claimed by the appellant, a sufficient answer to this action is found in the first section of the act,” etc. We do not regard the case as establishing the general and unqualified proposition contended for by the appellant in the present case. We think the precise question for decision here is still open to discussion.

As its title indicates, the act relates to the personal liability of the grantee of real estate and, as properly construed in the cases cited, to such liability in future cases. It does not apply to cases where the rights of the owner of the incumbrance or ground rent and the liability of the grantee with respect to that incumbrance or ground rent were fixed before its passage. For, it is not to be supposed, in the absence of words that are susceptible of no other interpretation, that, if the grantee had in any lawful manner contracted or become personally bound, to pay the debt or rent, the legislature intended the act to have the retroactive effect of discharging him from the liability thus assumed. But we find nothing in the words of the act to warrant the conclusion that, in an action by the ground rent owner against the owner of the land, the “ under and subject ” clause in a future grantee’s deed was intended to be interpreted one way if the ground rent was created before the passage of the act and another way if it was created afterward. We see no reason, therefore, for qualifying our statement in Clay v. McCreanor, 9 Pa. Superior Ct. 433, “ that this clause of the deed ” (executed after the passage of the act of 1878) “ added nothing whatever to, and took nothing from, the rights or remedies of the ground rent owner. It was not a declaration or acknowledgment made to him or his agent, or which was intended to inure, or did inure by operation of law, to his benefit.” This construction is in harmony with the ruling in Hollenberger v. Yaukey, supra. It gives the provision of the act relative to the under and subject clause in a deed executed after its passage a purely prospective operation and does not in any way impair the obligation of any contract or take away any vested right of the mortgagee or the ground rent owner.

Nor is it necessary in this discussion to notice the Act of April 25, 1850, P. L. 569, further than to say that it affected the remedy only, and, of course, it cannot be contended that the present owner of the rent or his predecessor in title has or had any vested right in a purely statutory remedy that was given after the ground rent was reserved.

But independently of any express assumption of liability by the assignee of the land, and independently also of the provisions of the act of 1850, what, prior to the act of 1878, were the rights and remedies of the owner of a ground rent reserved in a deed executed in 1846, and to what extent, if at all, have they been affected by the act of 1878 ? That a ground rent in Pennsylvania, which is a rent reserved to himself and his heirs by the grantor of land in fee is a rent service, was demonstrated in Ingersoll v. Sergeant, 1 Wh. 337, “ a case which has been so often recognized and followed as to have become a rule of property:” Wallace v. Harmstad, 44 Pa. 492. The right thus created is a freehold having all the qualities of real estate: Streaper v. Fisher, 1 R. 155. Upon such a conveyance the grantor acquires an estate of inheritance in the rent and the grantee an estate of inheritance in the land: Irwin v. Bank, 1 Pa. 349. Out of this relation, because of the essential qualities of the estate or right reserved, and independently of any formal personal covenant, arises a duty of the grantee in the conveyance to pay the rent as it accrues. This duty follows the title through all its successive changes and devolves upon the assignee eo instanti he accepts the assignment and takes possession, or has the right of possession, there being no actual possession by another. The covenant of the grantee in the ground rent deed runs with the land and binds the assignee though not named. Therefore, according to some of the earlier cases an action of covenant could be maintained against the assignee in such a case: Weidner v. Foster, 2 P. & W. 23; Royer v. Ake, 3 P. & W. 460. A different view as to the right to maintain an action of covenant against one who had not sealed the deed was expressed in Maule v. Weaver, 7 Pa. 329, and Irish v. Johnston, 11 Pa. 483, but in Hannen v. Ewalt, 18 Pa. 9, the doctrine of the earlier cases was reasserted. But whatever, prior to the procedure act of 1887, was the proper form of action for enforcing it, the right reserved to the grantor in a ground rent deed to demand the stipulated rent as a return for the actual or beneficial enjoyment of the premises is a valuable right. -It inheres in the very nature of the estate reserved and has its inception at its creation. It is impossible for the grantee in such deed to curtail it by parting with his title or by agreement with his assignee, in which respect it differs from the right of survivorship between joint tenants considered in Bambaugh v. Bambaugh, 11 S. & R. 191. If, in addition, there be an express covenant by the grantee or grantees in the ground rent deed for himself, his heirs and assigns, or, as in this case, “ for themselves, their successors and assigns,” this is a “ real covenant,” a “ perpetual covenant,” a “ covenant running with the land.” If the next day or the next year the legislature were to declare that such a reservation theretofore made and accompanied by such a covenant should be restricted in its effect, so far as personal liability was concerned, to the grantee in the deed, can it be doubted that such a law would be retroactive ? We think not. It seems to us that it would curtail an existing right lawfully reserved when the land was conveyed, a right which added value to the estate created by the reservation, and would in effect change the nature of the covenant. Granting, for the sake .of the argument only, the power of the legislature to enact such a law, was it their intention to do so in the enactment of the law under consideration ?

Whatever the legislative power upon the subject may be, an intention to subvert rights of property, vested rights, should never be imputed to a statute unless indicated in such terms, having regard to all legitimate means of interpretation as admit of no doubt, but show a clear design to effect that particular and specific purpose: Endlich on Interpretation of Statutes, sec. 273. In the absence of such plain expression of design, it should be construed as prospective only, although its words are broad enough in their literal extent to comprehend existing cases : Sutherland on Statutory Construction, sec. 464. Retrospective laws generally if not universally work injustice, and ought to be so construed only when the mandate of the legislature is imperative. They ought not to be so construed “ unless the language is so clear as to preclude all question as to the intention of the legislature: ” Taylor v. Mitchell, 57 Pa. 209. This general rule of construction is so well settled that it is unnecessary to cite other authorities. We have express authority for saying that the act of 1878 is prospective only (Merriman v. Moore, supra; Hopple v. Hutchinson, supra); and, having come to the conclusion that the construction contended for in the exceptionally able argument of the appellant’s counsel would give it a retroactive effect, we are not at liberty to adopt it.

Judgment affirmed.