Robey v. Prout

Mr. Justice Wylie

delivered the opinion of the Court :

William Prout, now deceased, was seized of the lot in controversy, .and in the year 1820 made a lease of it to one Jonathan Porter, for the term of 99 years, renewable forever, in trust for the use and benefit of one Jane Mallion, wife of Vandora Mallion, her heirs and assigns, reserving a rent of $25.80, payable on the 11th of April annually, in ■addition to the payment by the lessee of all taxes, &c., and if the rent should be in arrear for the period of sixty days, and no sufficient personal property could be found on the premises from which to make such rent by distress, it should “be lawful for the lessor, his heirs, &c., to re-enter and ♦terminate the lease. ’

The lease also contained a provision that the trustee as such or the said Jane, her heirs or assigns,should have the right to purchase the property at any time by paying the sum of $430, in addition to arrears of rent and taxes.

It also provided that the said Jane Mallion should have the right to dispose of her interest under this lease by her last will and testament. The right given by the contract to the trustee or to the said Jane, her heirs or assigns, to purchase the property at any time at the price stipulated, especially when taken in connection with that conferred upon her to dispose of her interest by last will and testament, made her property under the lease an estate for her own sole and separate use; for these provisions are wholly irreconcilable with a right in her husband to take the leasehold interest by survivorship should she die before him. The lease was, therefore, not a chattel real which could pass to the husband by survivorship.

A lease for years to the wife whether it be a legal estate in herself or to a trustee for her, if not held for her own sole and separate use, is a chattel real to which the husband may succeed by survivorship. But if the conveyance be for her own sole and separate use he shall have no interest in the property during her life, nor shall he have any by survivorship after her death. The property is wholly unaffected by the marriage.

A simple conveyance of property, for the use and benefit of a married woman, however, without other provisions will not defeat the right of the husband in this respect. If the property be a term of years he is possessed of it during her life in her right, he has power to convey it at his pleasure with or without consideration during her life, and if not previously disposed of and he survive her it is his absolutely. But if the wife survive the husband it is hers.

But if the tei’in has been conveyed after marriage to trustees for her use and benefit with the husband’s privity and consent, his marital right will not attach in such a case, although it may not have been expressed to be for her sole and separate use. Turner’s Case, 1 Vernon, 7 ; Pitt vs.. Hunt, Id., 18; Clancy on Rights of Married Woman, 9.. “ Property of any description may be limited to the use of a married woman; but whether that use shall be separate- or not, depends on the intention of the grantor. When that intention is once ascertained to be that the use is for the-wife alone, and not for her husband, equity will give effect to it without regard to the legal maxim that the husband' is the head of the wife, and, therefore, all that she has belongs to him.” Clancy, 251.

In the present case we think it quite clear that the leasehold interest conveyed by the instrument in question was intended to be for the sole and separate use of Jane Mallion,, not liable to be disposed of by her husband, Vandora, in his lifetime or to go to him by survivorship upon her death.

At the date of the execution of this lease Jane Mallion was theydfe of Vandora Mallion. They entered under the lease and erected several small tenements upon the property, and so continued in possession, paying the rent and taxes-till October, 1852,- when she died intestate, leaving one child by a former marriage and her husband, Vandora,. surviving.

Vandora Mallion, the surviving husband, continued in; possession of the property till his death, which occurred early in 1853 — a few months only subsequent to that of his= wife. Having been advised that he took his deceased wife’s-interest in the lease by survivorship he made a will bequeathing this interest to the Rev. Edward Knight, a clergyman of the Roman Catholic Church, who took possession and paid the rents and taxes till 1858 or 1859, when he abandoned all claim to the property, in consequence of the assessment by the city of a heavy special tax for paving the street and the alley, bordering on the premises, and soon afterwards died. For several years the tenants who had been put into possession by Mr. Knight paid no rent to any one, for none was demanded. The rent and taxes being largely in arrear, the defendant to whom the reversion had descended as heir at law of William Prout, the ■original lessor, issued in 1864 a landlord’s warrant to collect these arrears of rent. The tenants were poor, having very little property on which a distress could be levied, and ■either hid that little or abandoned the premises, and the rent was not collected. Some were induced, however, to remain .and the others to return and accept new leases' from the ■defendant, and in this manner it was that he re-entered .and now claims to be revested of the estate, as it was in his ancestor before the leasehold contract of 1820 was entered into with Jonathan Porter, the trustee of Jane Mallion.

As a re-entry at common law the proceeding -jvas clearly .void, for there is no evidence to show that any one of its forms have been complied with, as to which, being a proceeding to forfeit the estate of the tenant, the law was ever exceedingly strict.

Still less was it a compliance with the provisions of the Statute of 4 George II, Chap. 2, which gives the landlord the privilege of bringing an action of ejectment against the defaulting tenant and substitutes the service of the ■declaration in ejectment .for the re-entry at common law; for no ejectment was ever brought.

It thus appears that the interest of the lessee, under the lease of 1820, has not been forfeited in form or effect by any of the measures which have been adopted for that purpose by the defendant.

It has been shown, also, that on the death of Jane Mallion in 1852, the equitable title to this leasehold interest did not go to Vandora Mallion, the surviving husband; and that his will bequeathing it to the Rev. Edward Knight was void for that purpose. The legal title after her death •devolved upon, and was possessed by, Jonathan Porter, or his representatives, in trust for the personal representatives, of Jane Mallion if such had existed ; but Jane Mallion died intestate and no administration on her estate was ever-taken.

Porter, the trustee, had long before left the District of Columbia, and had liot been heard of in many years, so that he was presumed to be dead, and his heirs and personal representatives, if any, were unknown.

At her death Jane Mallion left one child, named Mary Ann Robey, surviving, her sole heir and next of kin. She was the child of a marriage anterior to that between herself and Mallion, and had been married to a man named Robey who died several years previous to the institution of the present suit.

The present suit was brought by this Mary Arm Robey in 1865, very shortly after the defendant had got into possession of the property. The object of the bill is to obtain a decree requiring the defendant to account for the rents and profits received from the property, or which he might have collected subsequently to its abandonment by Mr. Knight; also to obtain a conveyance from the defendant of the reversionary estate on paying the price fixed by the contract of 1820, which she tendered herself ready and willing to pay; and also to correct a misdescription of the property contained in the leasehold contract.

In November, 1866, Mary Ann Robey died intestate leaving an only child, John T. Robey, who in December of the same year filed his bill of revivor, thus succeeding as complainant in the present suit.

The legitimacy of both Mary Ann Robey and of her son, the complainant, has been strongly assailed by the defendant, but we think the preponderance of evidence is in favor of their legitimacy, although the question as to each of them is not so free from doubt as we should like to have it.

Admitting the equitable interest of the complainant in the lease, as derived through his mother and his grandmother, the question has been made by the defendant whether he'is the proper party to bring the present suit. 'That lease was personal property, and liable for the debts of the grandmother first and of the mother afterwards, and would have been the subject of administration had any been granted, and administration might yet be taken out upon it.

So far as respects the claim for an account of the rents and profits against the defendant, we think the objection fatal, at least until an amended or supplemental bill can be filed in the case. In Humphreys vs. Humphreys, 3 Pr. Wms., 349, the Lord Chancellor (Hardwicke) sustained a •demurrer to a bill brought by the next of kin against the defendant for an account of personal estate in the possession of the lattei;, on the ground that the suit could be brought •only by the administrator. The complainant afterwards •obtained administration on the estate, when the Lord Chancellor allowed her to amend her bill in that respect. The •defendant then pleaded to the amended bill, objecting that the amendment changing the character in which complainant sued from that of next of kin to that of administrator •could not be made, because the record would then show that complainant’s bill as administratrix would appear to be filed before administration was taken out, and consequently before the right to sue commenced.

But the Lord Chancellor overruled the plea, observing that the mere right to have an account of .the personal ■estate was in the plaintiff as next of kin, and it was suffi•cient that she had now taken out letters of administration, which, when granted, related to the time of the death of the intestate. “ Wherefore his lordship resented this plea -as an affected delay, and held that the taking out letters of administration might be charged either by way of supplement or amendment.”

As it respects the prayer for an account of the rents and profits in the present case, therefore we could do nothing better for tlie complainant than to retain the case until he .should have obtained administration on the estates of his mother and grandmother and filed his amended or supplemental bill.

Whether it would be profitable to him to take that course is for himself to consider. It appears to us the defendant’s liability to account could not be carried further back than the 1st of January, I860, when he entered into possession of the property.

Besides there is another aspect of the case in which the same end may be reached, possibly, without the expense and delay necessary to obtain an account in the way -just indicated.

By the contract of 1820 the defendant is bound to convey to this complainant, he being the sole heir of Jane Mallion, the whole reversionary interest in the property, when he shall have been paid the sum of $430, besides all the rents and taxes for which the property is liable. Now, this renders a reference to the auditor necessary in order that he may state the account as to these rents, &c., between the parties, before the court can make a decree to settle the sum which the complainant will be required to pay to the defendant for the reversion.

In this view of the case the appointment of an administrator is not required, for the complainant’s right to demand the conveyance is a right secured to him by the contract of 1820 as heir of Jane Mallion.

The mistake in the description of the lot in controversy, as charged in the bill, is frankly admitted by the answer, and there is nothing to prevent its being corrected by the decree.

The decree of the court below will require some modification to make it correspond with these view, and the case will have to go to the auditor with instructions accordingly.