Wasserman v. Carroll

Opinion by

Willard, J.,

By a conveyance sufficient in law, Mary J. Carroll, wife of Thomas J. Carroll, on July 14, 1888, became the grantee and owner in her own right of a ground rent of $21.00 per annum charged upon the premises No. 706 Jamison street in the city of Philadelphia. By the grant and conveyance to her she was vested with a real interest in the premises capable of conveyance or extinguishment by deed and that might be taken in execution and sold as realty. By virtue of this interest, so vested in her, she claimed rent in arrear before the auditor in the court below, which was allowed by him, but on exceptions disallowed by tbe court. The only question in this case is the effect of the deed of Thomas J. Carroll and Mary J., his wife, of November 28,1898, to John O’Toole. By its terms it purported to convey inter alia the premises 706 Jamison street.

The words of the grant are as follows: “ The said Thomas J. Carroll and Mary J., his wife, have granted, bargained, sold, aliened, enfeoffed, released and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release and confirm unto the said John O’Toole, his heirs and assigns ” inter alia the premises in question described as 706 Jamison street “together with all and singular the buildings, improvements, ways, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances, whatsoever thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof: and all the estate, right, title, interest, property, claim and demand whatsoever of them the said Thomas J. Carroll and Mary J., his wife, in law, equity or otherwise howsoever of, in and to the same and every part thereof.”

There is no ambiguity in this instrument. It must be construed from the language used in all its parts. The fact that Mrs. Carroll never claimed rent is as immaterial as the fact that Mrs. Johnson, grantee of O’Toole, in a letter expressed her opinion or belief that the rent was still a charge.

The question is, what passed by the deed? In Streaper v. Fisher, 1 Rawle, 154, it was said “ Therefore, if the sheriff levy on the rent charge, but advertise, sell or convey the lot out of which it issues, the rent charge passes.” In Heartley v. Beaum, 2 Pa. 165, under a sheriff’s sale, where the lot was described, “with the rents, issues and profits thereof,” it was held that the ground rent reserved passed to the purchaser.

It is urged that the ground rent was an estate in the wife separate from that of the husband in the ground. This position is undoubtedly correct. Mrs. Carroll was unquestionably the owner of the ground rent absolutely. It was neither held in nor charged with any trust, as in Hatz’s Appeal, 40 Pa. 209, and Klein v. Caldwell, 91 Pa. 140.

With the act of June 8,1893, in full force, Mrs. Carroll had the right and power to convey the ground rent or any other interest in her own land, provided her husband joined in the conveyance.

We are aware that prior to the act of 1887 a wife, joined by her husband in a conveyance of her own estate, could not be held in an action upon the covenants in the deed. But why? Simply on account of her disability prior to that time to enter into the covenant so as to be personally liable thereon. This disability being removed by the acts of 1887 and 1893, the reason for the rule no longer exists, and in a conveyance of her own property, properly joined by her husband, she is undoubtedly liable on her covenants relative thereto.

This man and wife, each having an interest in the subject of the grant, by apt and unambiguous words conveyed the same to John O’Toole, and by our judgment we do not propose to fritter away the plain meaning of the grant without stronger evidence of a different intent than that contained in the report of the learned auditor. The rents were not reserved in the deed, they were clearly granted without exception, limitation or qualification. Mrs. Carroll had no right to the fund in court, because she had deeded away the source from which it sprang, and by subsequent conveyances the ground rent became vested in Joseph Wasserman, who was the sheriff’s vendee under the mortgage of her husband’s interest.

The assignment of error is overruled, the judgment affirmed and a procedendo awarded.