text:
    Robinson v. County of Allegheny.
    Grantee on ground-rent, covenanting to pay all taxes assessed on the demised premises without any deduction from the rent, is not liable for taxes assessed upon the ground-rent.
    Where the tenant has not covenanted to pay the taxes on the ground-rent, they are to be assessed against the owner; and the full value, and not the annual rent, is the value on which the assessment is to be made.
    Where the grantee on ground-rent covenants to pay the taxes on the rent, there is to be no separate assessment on the ground-rent
    In error from the District Court of Allegheny.

      Nov. 10. Case stated. In 1834 and 1835, Robinson conveyed three pieces of land in fee-simple, reserving ground-rents, payable annually. In these deeds there were covenants by the grantee “ for ever hereafter to pay and discharge all public taxes of whatever kind or denomination that may bo assessed upon the premises hereby demised, without any deduction from the yearly rent before mentioned.” The rents reserved were one of $1000, and two of $240. The land was in the first ward of Pittsburgh; and the rents were there valued at $24,666 66, and the taxes assessed accordingly.
    The three points submitted are stated by.the court in their opinion. But tho facts raising the third did not appear on the paper book.
    The court below gave judgment for the plaintiff for the amount agreed upon, in case the court should be of opinion that the defendant was liable for the taxes assessed upon the full value of tho ground-rents.

      Wills, Forward and Swartaw elder, for plaintiff in error,
    argued that the tenant, and not the landlord, was liable under the covenant; and, secondly, that the annual rent was tho standard of valuation. They cited Sandwich v. De Silver, 1 P. A. Bro. 221; Spear v. Hannum, 1 Yeates, 386; Franciscus v. Reigart, 4 Watts, 120; Platt on Cov. 213; St. Mary’s Church v. Milos, 1 Wharton, 234; Amesbury W. & C. Co. v. Amesbury, 17 Mass. 461; Salem Factory v. Danvers, 10 Mass. 517; School Directors v. Carlisle Bank, 8 Watts, 292; Waldron v. Lee, 5 Pick. 336; Preston v. Boston, 12 Pick. 10; Act of April 15, 1834, s. 4; Act of May 15, 1841, s. 7; Act of April 1, 1845, s. 1, p. 280; Vœgtly v. School Directors, 1 Barr, 333; Act of April 29, 1844, s. 34.

      Todd, contra,
    cited, as to taxation of ground-rent property, Act of April 11, 1799, s. 8 ; Act of April 15, 1834, s. 4; Act of June 11, 1840, s. 4; Act of May 15, 1841, s. 7; Act of April 1, 1845, p. 280; Irwin v. Bank U. S., 1 Barr, 353. Tho covenant of the lessee binds him only to pay the taxes on the premises demised to him, and not on tho ground-rent reserved: Peart v. Phipps, 4 Yeates, 386; Franciscus v. Reigart, 4 Watts, 98.

      Dec. 24.
   Rogers, J.

The points raised appear in a case stated, and are three in number.

1st. Under a fair construction of the general clause contained in the ground-rent deeds, is the landlord, as between him and the tenant, bound to pay any tax whatever in reference to his ground-rents ?

2d. If he is so bound, what is the proper subject of taxation, as against him, for any tax for which he may be liable — the principal of the ground-rents or the annual rent yielded?

3d. Can a tax on the full value of real estate, subject to ground-rent, be legally'assessed upon the tenant as in the case of fee-simple property, and at the same time a tax on the principal of the ground-rent, on the ground-rent landlord ?

The first question arises on a clause in the deed, which contains, inter alia, the following covenant: “And also for over hereafter to pay and discharge all public taxes, of whatsoever kind or denomination, that may be assessed upon the premises hereby demised, without any deduction whatever from the yearly rent before mentioned.” What is meant by taxes on the premises demised ? The legal signification clearly is, the fee-simple interest vested by the deed in the grantee, and not the ground-rent reserved, which is a separate and independent estate. The taxes assessed on the former only is he bound to pay. It is possible, as is argued, this may not have been the intention of the grantor; but if so, he'has been most unfortunate in the language used to express his meaning. But we cannot deal in conjecture, but must decide eases according to the legal import of the terms used. We are, therefore, of opinion that the landlord is bound to pay the taxes assessed on his own interest, and has no remedy over against the tenant. And as there is in these deeds no provision made that the lessee shall pay the taxes on the ground-rents, it is the duty of the assessors to estimate and assess them to the owner: Act 1840, s. 7, Dunl. Dig. 839; Act relating to taxes on ground-rents and real estate, and the Act of April 1, 1845, Pamph. Laws, 280, Dunl. 931.

What is the proper subject of taxation, the principal of the ground-rents or the annual rent yielded, is the next question, and we arc of opinion the tax must be assessed on the former. So far as we have been able to ascertain, this has been the uniform mode of assessment — a practice which would seem to be in accordance with the spirit of the act. The ground-rent is a separate, distinct, and independent estate, and no reason can be given why such estate should bo exempted from taxation, or made to pay less than its value, that will not apply with equal force to the owner of the fee. It is but right that the public burden should bo borne equally by all, as well by the owner of a ground-rent worth §10,000 at its market value as the owner of a fee-simple worth the same sum. It is easy to ascertain the value of a ground-rent- which is regulated by its annual product. This construction is not only according to the spirit, but the words of the act. By the term “ ground-rent,” used in the act, is meant its market, not its annual, value. The assessment is to be made on the corpus, not on its proceeds, which is the annual rent.

And this leads to the next question — Can a tax on the full value of real estate subject to ground-rent be legally assessed upon the tenant as in the case of a fee-simple property, and at the same time a tax on the principal of the ground-rent be assessed on the ground-rent landlord ? In the fourth section of the Act of June 11, 1840, the attention of the legislature was drawn to this matter. It is. there provided, that in estimating the value of any real estate subject to the payment of any dower, ground-rent, or mortgage, the principal of said dower, ground-rent, or mortgage, shall first be deducted, and the tax assessed on the remainder of the estimated value of said real estate. This act, which is free from ambiguity, furnished the rule, until the 15th May, 1841, when by the act of that date, s. 7, the proviso referred to was expressly repealed, and the legislature declared that such real estate shall be hereafter estimated at its full value, and taxed accordingly. There is, therefore, no room for doubt that the third proposition must receive an affirmative answer. All considerations of hardship or inequality of taxation must be referred to the legislature. With this we have nothing to do. But it must be observed that complete equality cannot be expected. All we can hope for is an approximation to it; and this can only be produced by the taxation of a variety of articles, and the operation of time, which causes greater equality than is generally supposed. Nor has the owner of property subject to ground-rent more reason to complain than the holders of real estate encumbered with a mortgage or judgments, which has always been taxed at its full value. It will be observed these rules do not apply where there is a provision in the deed that the lessee shall pay the taxes on the ground-rent. There seems to have been some doubt whether under existing acts, particularly the act of the 15th May, 1841, the owner of the ground-rent could be assessed for taxes; and to remove such doubts, the legislature, on the 1st April, 1845, enacted that hereafter the assessors in the several cities, boroughs, and counties of this Commonwealth, in estimating real estate subject to ground-rent, ivhere there is no provision made in ground-rent deeds that the lessee shall pay the taxes on the said ground-rents, the assessors shall estimate and assess for „ taxes the said ground-rents to the owner thereof. This would appear to be the only object of the act; it was not intended to interfere in any other particular with the seventh section of the act of the 15th May, 1841, which especially directs that the real estate shall be estimated to the holder of the fee at its full value. Had so great a change been contemplated in the mode of assessment, it is believed the legislature would have announced their- meaning in other terms. Where, by the deed, the lessees have covenanted to pay the taxes on the ground-rent, the legislature have exempted the ground-rent from taxation, in which case the tax is assessed and paid by the owner of the estate on its fee-simple value.

Judgment for plaintiff below for $111 08.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    Kramer v. Arthurs and Nicholson.
    A joint-stock company to deal in land, is essentially a partnership, and land purchased by it as an article of trade is not subject to judgment and execution at the suit of a separate creditor; and a purchaser, with notice, by a voluntary or an involuntary conveyance of the interest of one of the partners, is to bo postponed to a subsequent purchaser of the interest of the firm.
    The purchaser of an equitable title is a purchaser with notice, and takes subject to prior equities, though they were actually unknown to him.
    By articles of copartnership, the firm of A. andB. and nineteen other shareholders, constituted themselves a joint-stock company to deal in land, for three years; at the end of which, the capital and profits were to be divided. .A. and B. were the active agents of the company, and ostensible owners of its lands, buying and selling in theic own names, and executing secret declarations of trust in its favour, and recording them when required to do so. B. was also the owner of a half-share in the company's stock. By the articles they were to receive a third of the net profits in compensation of their services. They purchased, by written agreement, a tract of land from C. and paid the purchase-money; after which, A. sold Ins interest in the land and in the profits of the concern to B., who thenceforth became the sole agent of the company. Subsequent to the purchase and payment, judgment was obtained by a separate creditor of A. and B.; and still later, B. agreed to sell part of the land bought from C. to D., who directed the conveyance of the legal title to be made immediately ‘from C. to E. The firm of A. and B. was a creditor of the company, which was insolvent. Ifeld, that the interest of A. and B. in the land, was not bound by the judgment of their separate creditor.
    As the ownership of such a partner is not the estate of a tenant in common in the lands, but a resulting interest in the proceeds, it is not bound by a judgment for his separate debts, though it is bound by a judgment for a partnership debt.
    In error from tlie District Court of Allegheny.

      Nov. 1. This was an ejectment in which the main question was, whether either Havens or Wetmore had such an interest in the land in question as could be sold by the sheriff under a judgment against them — which judgment had been assigned to Arthurs and Nicholson, who becamp the purchasers at the sheriff’s sale.
    In September, 1835, Halsey and nineteen others of New York, under the style of the “ Pittsburgh Land Company,” as parties of the first part, executed an indenture with Wetmore and Havens, of the other part — reciting that the parties of the first part had associated themselves for the purpose of purchasing, selling, and improving real estate in Pittsburgh and its vicinity, and for no other purpose, and had agreed to furnish a capital for that purpose of $100,000, to be divided into shares of $5000 each, and also to constitute Wetmore and Havens their agents, attorneys, and trustees for the execution of the said objects. It was further agreed that Wetmore and Havens should purchase, sell, exchange and mortgage real estate in or near Pittsburgh, as they should deem most advantageous to the parties of the first part, subject to the conditions of this agreement. The deeds for the land were to be taken in the names of Wetmore and Havens absolutely, who were immediately to execute a declaration of trust, setting forth that they held in trust to sell and convey, and to receive the purchase-money in trust for the parties of the first part under the conditions of this agreement, and to convey the residue undisposed of to the parties of the first part on payment of advances, &c., and receiving their share of the concern under the agreement. ' This declaration of trust was not to be put on record until the majority of the parties of the first part should deem it proper. Wetmore and Havens had full power given to sell, convey,.and re-invest the proceeds, and to improve by building to a limited extent, and they agreed to purchase no real estate on their own account. Transferable certificates were to be issued to the shareholders, and at the end of three years, unless the company should continue longer by agreement, the transactions were to be brought to a close, and the moneys and proceeds of sales to be applied, 1st, to pay obligations contracted in the purchases. 2. To reimburse the payments by the shareholders withinterest. 3. One-third of the residue betwéen Wetmore and Havens, which was to be in full for their services, and the remaining two-thirds among the shareholders. In case of a loss, Wetmore and Havens were to bear one-third of it.
    This deed was executed by the parties, and also by Havens, for one share of the stock hold by himself jointly with one Baldwin.
    On the 22d of January, 1837, an indenture tripartite was entered into between Wetmore of the first part, Havens of the second, and the parties of the first part in the previous deed as parties of the third part, in which, after reciting the previous deed, and that various purchases and declarations of trust had \)een made, Wet-more, with the assent of the other parties, conveyed to Havens all Ms interest in the real estate held in conjunction with him, and all his interest in the profits — Havens taking upon himself the execution of the trusts. These instruments were not recorded.
    On the 28d August, 1836, one Lee had executed a sealed agreement with Wetmore, by which he contracted to convey four acres' of land, of which that in question formed a part, belonging to Luckey, within two months. Wetmore agreed to pay to Luckey or his attorney, $3000 in hand or in secured notes at ninety days, and $10,000 in four annual payments.
    In December, 1838, Wetmore, by deed recorded in the next month, conveyed his interest in the lands purchased of Luckey to Havens. The plaintiffs proved a recognition of the contract made by Lee with Wetmore, in the letters of Luckey to Wetmore & Havens, written in 1838, and a ratification of that contract by Luckey, and a receipt of the purchase-money under it at the time of his execution of a deed to one Patterson in January, 1839, which was recorded, April 1, 1840: which deed was made at the request of Havens, and in pursuance of a contract between himself and Stewart for the sale of the land.
    Havens proved that the purchase from Luckey was made on behalf of the “Pittsburgh Land Company,” and that he had given Luckey the securities for the purchase-money : these were obtained from a sale of other parts of the property purchased from Luckey. The deeds to those purchasers were made directly from Luckey or his attorney.
    He further proved that he had agreed to sell the property in question to one Stewart on the 11th Feb., 1839; but, by his direction, he procured the deed to be made from Luckey to Patterson. A deed from Havens had been drawn, but was not executed, probably (the witness said) on account of his pecuniary embarrassments.
    It was also in evidence that the Land Company, on the winding up of their affairs, were largely indebted to Havens, who was insolvent.
    In August and October, 1838, the Dry Dock Company recovered a judgment against Wetmore & Havens. This was assigned in 1840 to Arthurs and Nicholson, who, in the same year, issued an execution, and, on the 24th August, purchased the land in question at a sheriff’s sale.
    The defendant deduced title from Patterson under a judgment against him in 1844, a sheriff’s sale to Miller for $4, and a conveyance to defendant by Miller for $11 — the value of the property being about $5000 or $6000. At the time of the sale to Miller, notice was given of the title of the plaintiffs; and there was pretty strong evidence that Kramer was affected with notice of the adverse title.
    It will, therefore, be perceived that Havens was the holder of the equitable title under articles, and that the trust for the partnership purposes was unrecorded, and that, on the settlement of its affairs, he was the creditor of the firm as agent and partner. Whether a judgment against him bound his interest as against a purchaser from him before the settlement of the affairs of the partnership, appeared to be the question.
    The court (Lowrie, J.) instructed the jury that Luctey’s ratification of the unauthorized contract made by Lee had a retroactive effect, and vested the title under that agreement. Hence, when he conveyed to Patterson in pursuance of the contract between Patterson and Havens, the title vested under the contract with Wetmore in 1836, and the judgment against Wetmore and Havens attached upon that title. This judgment might be considered as restricted to that part of the property which remained in Havens after satisfaction of Luckcy’s claim for unpaid •purchase-money, which had been satisfied out of the proceeds of sale of the other part of the land. The question then was, what was the title of Havens ? This, the court said, was absolute as to all the world, except as between Havens and the land company. Being entitled to possession and control under the articles with the company until repaid all his advances, and being a large creditor of the company, he had such an interest as was bound by the judg-ment, and the plaintiff purchasing under that judgment was enti.tlod to hold the land at least until repayment of Havens’s advances by the company. There was ' no doubt that Patterson had notice of Havens’s title, and hence purchased, subject to the judgment on his interest; and, as to those purchasing from Patterson, it seemed clear they had actual notice, or the conveyance was a device to avoid that difficulty. Whether Kramer had such notice, was for the jury to determine.

      Williams and Dunlop, for plaintiff in error,
    argued that the ratification by Luckey could not affect any intervening rights, nor could they bo lot in on the estate thereby confirmed: McKinney v. Rhoads, 5 Watts, 345. There being no contract binding upon the vendor under the statute of frauds until the ratification, the judgment was not let in. The possession of Wetmore and Havens was not such as sufficed to take the case out of the statute; 1 Fonb. Eq. 185; Anderson v. Maltby, 2 Ves. jun. 244; Whitbread v. Brockhurst, 1 B. C. C. R. 404. There was, therefore, no estate in Wet-more or Havens, which is essential to give a lien: Rickert v. Madeira, 1 Rawle, 329; but a sort of equitable right which never passed into estate until the conveyance to Patterson by Luckey. That there may exist such an equity, in Pennsylvania at least, is shown by Fisher v. Taylor, 2 Rawle, 33, and Vaux v. Parke, 7 Watts & Serg. 19. But what interest had Wetmore and Havens, supposing a title was vested in them ? It was but a trust of an equitable title. Their title as trustee could not be sold, Frazer v. Hallowell, 1 Binn. 126; and the rights of their eestuis que trust were protected by the outstanding legal estate which they were entitled to manage; and, as to their right to a part of the profits, or their lien for advances, that cannot, in Pennsylvania, be said to be an estate, when we hold that the devisee of the proceeds of land has no such interest as can be sold under a judgment.

      Metcalf and Loomis, contrá,
    argued that the ratification of the contract by Luckey had a retroactive effect to vest a title under the agreement: Story on Agency, ss. 244, 250, and 252. Under that agreement, a clear equitable estate was vested in the purchasers. This title, though equitable, was bound by judgment, which could not be defeated by any secret agreements of the holders ; and, supposing it was subject to the articles, and converted into partnership stock, yet, as Havens was the creditor of the firm, he was entitled to the assets, and the plaintiffs succeeded to his rights, and could retain possession until his claims were paid.

      Nov. 25.
   Gibson, C. J.

In order to develope the principles of this case, it is necessary to state succinctly the facts to which they are to be applied. By the style of the Pittsburgh Land Company, the firm of Wetmore and Havens, and nineteen other shareholders, executed articles to constitute themselves a joint-stock company to deal in real estate in that city and its vicinity, which was limited, in its duration, to a period of three years; at the end of which, the investment was to be withdrawn and the profits divided. The capital stock was limited to $100,000, in shares of $5000 — one of which was subscribed by Havens and Baldwin, who was one of the nineteen partners, and H. Wetmore and Havens were to be the active agents of the company and the ostensible owners of its property, having power to deal to thrice the extent of its capital, and to take conveyances in their own names as the only persons concerned, but being bound, at the same time, to execute declarations of trust for the security of the company, and put them on record when required to do so. Besides Havens’s proportion, as part owner of a share, Wetmore and Havens were to receive a third of the profits at the winding up of the concern ; but, in every thing else, they were to be a mere conduit-pipe of the title from their vendors to their vendees. They purchased the ground in contest by a written agreement from Lee, holding himself out to be the agent of Luckey, the owner of it, who subsequently ratified the bargain in a written correspondence with Havens. Shortly afterwards, Wetmore retired from the company, transferring his interest to his partner Havens, who, with its ■assent, thenceforth became its exclusive instrument. Thus constituted, and having paid the purchase-money, he sold the premises to Stewart, by whose direction the title was made to, Patterson —not, however, through Havens, but directly from Luckey. It will be seen that this avoidance of circuity is the master-key . of the case. In the mean time — that is, between the bargain with Lee, and the execution of it by the conveyance from Luckey to Patterson — the Dry Dock Company of New York had obtained a judgment against Wetmore and Havens for a.debt separately due by their firm, on which the premises were Sold to the plaintiffs below; and we are first to inquire into the relation which they thenceforward bore to the defendant, of those from whom he derives title.

Had the legal title and consequent indices of ownership been in Wetmore and Havens at the time of the sheriff’s sale, the plaintiffs, paying their money in ignorance of the defendants or the company’s interest, would have been entitled to the character of purchasers without notice. The case would have fallen within the principle of Hale v. Henrie, 2 Watts, 145, in which it was ruled that partners, who bring real estate into the joint stock, can do so, as to strangers, only by manifesting their design in a paper registered in the recorder’s office; else they will be mere tenants in common, and their estates in it will be severally liable for their separate debts. But, in the case at bar, the legal title was neither bound nor sold, for it never was in the debtors ; and, without gross supineness, the purchasers could not have been deceived as to the quality of their estate or the extent of their interest. No rule is sounder or more imperative than that the purchaser of an inchoate or imperfect title, intimating, as it does, that something is kept-back, must stand or fall by it as it existed in the hands of his vendor. But the interest of Wetmore and Havens was not even the counterfeit presentment of a title; and, as it had the outward and visible sign of inward and utter vacuity, the plaintiffs, purchasing it for what it was worth, took no more than was in their debtors. On the other hand, Patterson, having acquired the beneficial interest of the company, had procured the legal title from the company’s vendor; so that the defendant, deriving title from Patterson, has thus been put in the company’s place. The parties, therefore, stood before the court below, as if Havens were pressing his supposed equity against the company’s equity, backed by the legal title. What, then, would be the nature of his equity ?

Before we proceed to inquire into that, it is proper to say that I am not called upon by the exigencies of the case to determine how far the defendant is protected, as an innocent purchaser of the legal estate, from Hampton and Miller, who had purchased it on a judgment from Patterson; or, to remark further on the subject, than that particular reflections in the charge seem scarce to have been warranted by the occasion. Nor is it necessary to determine whether the bargain with Lee was originally within the statute of frauds, or whether Luckey’s ratification of-it related to a time so far back as to have set it up as an existing contract at the date of the Dry Dock Company’s judgment, under which the plaintiffs purchased. For the purposes of the decision, it may be admitted that an interest of some sort was vested in Havens by the ratification ; but what was it ?

That an incorporated joint-stock company is an ordinary partnership, and that there may be a partnership to deal in lands, are elementary principles that have not' been disputed. The latter was expressly recognised by this court in Brady v. Colhoun’s Administrators, 1 Penna. Rep. 147. “ Partnerships,” says Gow on Partnership, 6, “ are not necessarily confined to trades in commercial adventures. They may lawfully exist in cases unconnected with commercial speculations. -For instance, a partnership may exist between attorneys or farmers, as well as between merchants or bankers.” It would be absurd to let the nature of the article dealt in change the nature of the contract; or not to let partners give to land the attributes of a commodity, as between themselves and those standing in their'place, especially in a country where it is a chattel for payment of debts, and not unfrequently a subject of speculation. Where it is brought into a concern as stock, it is, as between the partners ¿nd a person who has knowingly dealt with one of them for it, to be treated as personal estate belonging, not to the partners individually, but to tbe company collectively. The members of this company, being sharers of profit and loss, were partners to the world; but, between themselves, they had only a contingent interest in the profits to be derived from the lands when the concern should be wound up, not a vested estate as tenants in common of the lands themselves; and, to a purchaser with notice or its equivalent, neither of them could part with more, either by a voluntary or an involuntary conveyance. As an agent entitled to a third of the profits in compensation of his services, it cannot be said that Havens had any property at all in the corpus of the stock; and as to him, or a purchaser from him with notice, or the means of it, the joint creditors would have been entitled to priority of satisfaction without aid from the special provisions in the articles. But even if his title as a shareholder had given him a several estate in the land, it would have given him no more than an undivided twentieth part of each tract, and no more could have been sold on a judgment against him by a separate creditor; certainly not-the entire tract, as was done here. But the lands constituted the stock, and, so far as Havens, or his alienees, with the means of notice, are concerned, they are to be treated as a commodity, as well by the express provisions of the articles as by the implied conditions of the contract. By these, it was stipulated that the estaté on hand should be sold at the expiration of the partnership, and that the cash and securities, after payment of the debts, should be divided among the shareholders “pro rata; according to their respective shares of the stock.” Now, what was the nature of the shares in the mean time ? Havens did not own even a twentieth part of the land jointly or severally. In Allison v. Wilson’s Executors, 13 Serg. & Rawle, 330, and Morrow v. Brenizer, 2 Rawle, 188, it was ruled that, where a party is entitled merely to the proceeds of land when sold, he has no estate in the realty Avhich can be bound by a judgment, or sold on an execution against him. The present is a stronger case; for so to interpret such a contract as to allow each member of the company to have a specific interest in the lands Avhich might be clogged by the liens or attachment of his separate creditors, W'ould defeat the very end of the association. I grant that a sale on a judgment against the company by a partnership creditor, would pass its lands, no matter whether as such or as chattels; but by no device can a separate creditor of a partner take any part of his share out of the capital stock and apply it to the satisfaction of his debt, or sell any thing but his contingent share of the profits and stock at the settlement of the partnership account; and, as that is personalty, it cannot be bound by a judgment. A glance at the facts of the case will show an attempt by the plain-' tiffs to do so at the expense of a party standing in the place of the company; and it must not succeed.

Judgment reversed.


author: Coulter, J.

text:
    Fenelon’s Petition. McMaster’s Petition.
    Proceedings under an act of Assembly cannot be completed, after the repeal of the act, but according to the provisions of the new act.
    Where proceedings to assess damages for opening streets in Pittsburgh, under the acts of 1836 and 1846, had been had and report filed, but exceptions thereto were not disposed of when the act of 1847 was passed, they are to be continued under that act. and the court below properly recommitted the proceedings to the former viewers to proceed under the new act.
    Certiorari to the Quarter Sessions of Allegheny.
    Nov. 12. These two cases were argued together. They were proceedings to assess damages for opening streets under the act of 1836, sect. 3, et- seq., Pamph. Law's, 750, which provided, that the damages should be paid by the councils of Pittsburgh, and^the act of 1846, sect. 8, p. 470, which authorized the assessment of damages on any person benefited by the said road. The reports, awarding damages generally, were filed in December, 1846, and exceptions taken. By the act of 1847, Pamph. Laws, p. 376, other provisions were made respecting these claims. On the 27th of April, the court declined approving the report of the viewers, and recommitted the matter to them, with instructions to proceed under the act of 1847. This was the error assigned by the.petitioners.

      Woods and Loomis, for appellants.

      Forward and Todd, contrá,
    referred to the acts above cited, and also the act of 1845, p. 52 ; 1831, p. 311; 4 Yeates, 392; 10 Watts, 351; 1 Watts, 382.

      Feb. 25, 1848.
   Coulter, J.

The question in this case, arising on the record and error assigned, depends upon the construction of the act of the 15th March, 1847, entitled “ A supplement to an act entitled an act to authorize suit to be brought,” &c.; Pamph. Laws, p. 376.

The fourth section repeals all former laws inconsistent with the provisions of the said supplement. The proceedings therefore on the petition of Fenelon under former laws, being incomplete and in fieri, were arrested, as with the touch of a torpedo, and the eourt and those vested with authority in the subject-matter, could proceed no further under those laws: 11 Pick. 350; 1 New Hamp. Rep. 61; 3 Halst. 48; Howe v. Starkweather, 17 Mass. Rep. 240, 7 Mass. Rep. 140. But a more decisive case to the same effect, is Stoever v. Immell, 1 Watts, 258, where the court say: If the proceedings were imperfect when the act under which it was begun expired, what has been done since is simply void, and needs no reversal.” And in same book, Commonwealth v. Beatty, page 382, where it was ruled, that a remedy having been provided by statute, and proceedings instituted under it, but during their pendency the statute was repealed, the remedy thereby was taken away, and any further proceedings to enforce it illegal. The proceedings under the old act were incomplete at the time so much of that act as was inconsistent with the act of 1847 was superseded and repealed, and they could never have been completed under the old act of 1836. But the statute of 1847, while it broke up and destroyed the old remedy, kindly furnished a new one. It changed the remedy, which has been considered as fully within the acknowledged competency and power of the legislature. The act of 1847 expressly refers to proceedings commenced under prior acts, and directs the mode of proceeding by viewers appointed under those acts; so that it is clearly within the saving of the case of Bedford v. Shilling, 4 Serg. & Rawle, 401, that an explanatory act, or one which changed a remedy, did not refer to causes already commenced, unless it was so expressly nominated in the act. But there is the more reason for that construction here, inasmuch as the proceedings under the old acts must cease, and the petitioner be compelled to proceed de novo, unless the eourt were justified in adopting the course which they did. That they were justified in doing so is clear from the provision of the first section of the act of 1847, which enacts, “ That the viewers appointed under the act to ivhieh this is a supplement thus clearly referring to viewers already appointed under the old act. The new statute then proceeds to specify the duties of the viewers so appointed, and to direct what they shall do, and how proceed. The court were right, then, in considering the report under the old act as a nullity, and one on which they could not act after the repeal of the law under which it was made.

They were fully warranted in sending the matter back to the viewers to proceed under the new act, because the act speaks of viewers appointed under the old act, and continues their authority to proceed under the new act. From the date of the act of 1847, it was substituted for the old act, so far as they were inconsistent, and the powers of viewers were continued under the act of 1847.

A statute authorizing the apportionment of damages caused to one lot by the opening of a street, upon other lots benefited thereby, and making such damages a lien on such other lots, is constitutional : 3 Watts, 292. Compensation must be made when private property is taken for public use, but the mode, manner, and criteria of amount of that compensation is not a matter for judicial, but by legislative proceeding.

Proceedings affirmed, and procedendo awarded.


text:
    Dennison v. Goehring.
    Account render lies by cestui que trust against his trustee receiving profits of land. When the title has passed to a person in trust, the trust will always be enforced, though the trustee himself paid the purchase-money, and tho trust is declared for his children.
    ' In error from the District Court of Allegheny.
    This was an action of account render by Goehring and wife against Dennison, as their bailiff, who held under a deed from Sturgeon et al. By this deed, lands were conveyed to Dennison in fee, reserving a ground-rent in fee, upon the special trust that he and his heirs would let the premises at his discretion, and receive and apply the rents, share and share alike, to the maintenance arid education of J. S. Dennison, M. A. Dennison, and Agnes Dennison, (the wife of the plaintiff;) and if either of them should die without leaving lawful issue, the whole of the proceeds of the rents should bo applied to the use of the survivors: if with issue, sueh issue to enjoy their parents’ share. And upon the further trust, that after the deaths of the said J., M., and A., the said Samuel, his heirs, &e., should hold the premises in trust for the legal heirs and representatives of the said J., M., and A., their heirs and assigns. There were further limitations to the heirs of the survivors, in the event of the death of either of the tenants for life' ■without issue, and a provision discharging the estate from debts and contracts by J.‘, M., and A., or either of them, or their issue during their lives.
    Upon this evidence the points taken were, that there were not proper parties, and that the trust was the subject of the new chancery jurisdiction, and not enforceable at law; which were overruled.
    These were all the facts upon this record; but various others were alluded to, and formed the basis of part of the agreement. These are to be found in the case in the note, and appear to have been treated as in evidence in this cause.

      Dunlop and Alden, for plaintiff in error,
    argued that the only construction the deed would bear, was a covenant to give money at a future day. Tire beneficiaries were minors, and the defendant-paid the consideration money for the land, and had eight children not provided for. There was here no express declaration of a use, as argued by Mr. J. Kennedy, since it was essential to such a case that there should be something in esse, of which the use should be declared: 1 Cruise Dig. 433, s. 39. No estate was to vest in the beneficiaries; but the rents were to be reserved in futuro to the defendant: Cruise Tit. 32, c. 12, ss. 7, 9: and there was but a naked promise to apply the proceeds to maintenance. Neither could this be an advancement, since the legal’ estate was retained by the father. If it is an executory trust, it is without consideration, and no case can be found of such a trust being enforced, . while they are numerous which deny the proposition : Colman v. Sarel, 3 Bro. C. C. 12 ; Ellison v. Ellison, 6 Ves. 656; Antrobus v. Smith, 12 Ves. 39; Jefferys v. Jefferys, 1 Cra. & Phil. 138. A valuable consideration is always essential to put the court in motion ; blood, however near, is not sufficient: Holloway v. Headington, 8 Sim. 324; Jefferys v. Jefferys.
    Nor is it pretended that the benefit of the cestuis que trust entered into the consideration for the creation of this estate; for it is admitted Dennison paid the full pecuniary value for the land. This is then within the express words used in Kisler v. Kisler, 2 Watts, 324; Meek v. Kettlewell, 1 Hare, 464. The rent is a mere chose in action, and the gift, until completed by possession, is revocable: Lyon v. Marclay, 1 Watts, 271; Fink v. Cox, 18 Johns. 145; 2 Johns. 52; 10 Johns. 293; 2 Bailey, 588.
    If there be a remedy, it is covenant by the grantor, who is the ODly party tha.t can sustain the action: nor can the moral obligation to maintain children be invoked, for that equally extends to the after-born children.

      Todd, Woods, and Loomis, contra.
   Gibson, C. J.

The point involved in this cause was argued on a bill in equity between the parties, at September Term, 1845; and as the case has not been reported, the opinion of the court, delivered by my brother Kennedy, is here subjoined. The same point has been twice solemnly argued at the present term: once on a bill of review, without being decided, because the bill was not held to lie, (Yol. VI.); and once on this writ of error; but without the effect of leading us to any other opinion than that which was expressed in the case of the original bill.

The argument for the plaintiff in error resolves itself into this: that the trust declared on the deed to him is an executory one, which equity will not enforce in favour of volunteers, as his children are said to be. But what is an executory trust ? In Bagshaw v. Spencer, 1 Ves. 152, Lord Hardwicke declared, almost in terms, every trust to be executory; inasmuch as every cestui que trust is under the necessity of coming into equity for a subpoena to have the trust executed; from which he inferred that the distinction is unfounded — a position from which he was forced to recede in Exel v. Wallace, 2 Ves. 328; and Lord Henley said, in Bastard v. Proby, 2 Cox, 8, that he had given it up altogether. It is obvious, that if all trusts were executory in Lord Hardwicke’s sense of the word, the plaintiff in error would have no case here; for the books are full of decrees in favour of children and volunteers. But there never was a time when there was not a substantial distinction between an executory and an executed trust, properly so called. It was recognised by Lord Cowper, in Bale v. Coleman, 8 Vin. 267; by Lord King, in Papillon v. Voice, 2 P. W. 478; by Lord Talbot, in Glenorchy v. Bosville, Ca. Temp. Talb. 3; by Lord Hardwicke himself in Roberts v. Dixwell, 1 Atk. 608; Baskerville v. Baskerville, 2 Atk. 280; Read v. Snell, Ibid. 648; Woodhouse v. Hoskins, 3 Atk. 244; and Marryat v. Townly, 1 Ves. 102; and by Lord Northington, in Austen v. Taylor, 1 Eden’s R. 368. There is therefore an actual distinction; but what is it ? “ A trust executed,” says Mr. Lewin, in an excellent treatise on Trusts and Trustees,- chap. 5, p. 48,' “ are when the limitations of the equitable interest are complete and final; in the executory trust, the limitations of the equitable interest are not intended to be complete and final, but merely to serve as minutes and'instructions for perfecting- the- settlement at some future period.” They arise out of marriage articles or wills, as descriptions of the estates to be created when a court of equity comes to settle them and model the trusts conform-ably to the intention of the party who dictated them. To say nothing of the fact that the trusts, in this instance, do not arise out of marriage articles or a will, I ask whether the limitations of the equitable interests are not complete and final, as they stand on the face of the deed, or whether they require the power of a chancellor to direct a conveyance in order to settle them ? The trusts are: first, to lease the property and apply the rents of it to the maintenance and education of the trustee’s three children, Jeremiah, Mary Anne, and Agnes, and their children, or the survivors of those who should die childless: second, to hold the property after the death of all, or any of them, in trust for their issue, the survivors, or their right heirs in fee. Nothing can be clearer than the details; and never were equitable interests more perfectly and definitely limited. There would be no room for a chancellor to model the trusts, even if that were within his jurisdiction; but as they arise on an executed conveyance, which vests the legal estate in a trustee, his jurisdiction extends only to the enforcement of them. The plaintiff in error therefore fails on his own ground.

But is it true that equity will not enforce an executory trust in favour of a volunteer ? It will doubtless not enforce a contract to create a trust, though it were under hand and seal; and in this respect it carries the doctrine of nudum pactum further than even the law does; but the difference between a covenant to create a trust and a trust created, is as wide as the difference between a covenant to convey and a conveyance executed. It enforces no contract which does not rest on a valuable, or at least a meritorious consideration; but it enforces an executed contract with as much alacrity as the law would enforce it. The reason of the difference in regard to the effect of a seal is, that the interposition of a chancellor is matter of favour; but that the interposition of a court of law, with whom a seal stands for a consideration, is matter of right. While a contract for a trust, therefore, is executory, the trust itself is held to he executory; and it stands on the footing of any other executory contract,-in respect to which a chancellor is guided by his apprehension of the justice of the contract in applying or refusing his power to the execution of it; but when the legal estate has passed by a conveyance in which a trust is distinctly declared, the trustee will not be allowed to set up want of consideration to defeat it. The plaintiff in error is a party to the instrument, and as much bound by it as if the consideration had moved from the children. His payment of the purchase-money was a gift to them of so much as an advancement, which took effect in possession by being laid out to their use in the purchase; and he cannot now retract it. He can no more claim the beneficial estate purchased with it, than he could have claimed a resulting trust, had the legal ¡estate been conveyed to them. In Ellison v. Ellison, 6 Ves. 656, Lord Eldon said, that the assistance of the court cannot be had to constitute a party cestui que trust, upon a voluntary covenant; but that, if the relation of cestui que trust and trustee be actually constituted by a legal conveyance, though without a consideration, the equitable interest will be enforced. To the same effect is Bunn v. Winthrop, 1 Johns. Ch. R. 337; and the remark of Sir Joseph Jekyll, in Lechmere v. The Earl of Carlisle, 3 P. W. 222, that every volunteer cestui que trust is entitled to the assistance of a court of equity, is full to the point. In Sloan v. Cadogan, Sugd. Vend. App. No. 24, Sir William Grant remarked: “ That the court will not interfere to give perfection to the instrument; but that where the trust is actually created, no consideration for it is essential; and that the court will execute it, though it be voluntary.” The same thing was said by him in Antrobus v. Smith, 12 Ves. 39, in which a voluntary assignment to a daughter was not held to create a trust only because it did not pass the legal title. Ex parte Pye, 18 Ves. 140, also contains the same principle. In all these, and some other cases that might be cited, the question was not whether the trust were voluntary, but whether there were any trust at all. It was, whether there was a gift executed by a transfer of the title at law, or only an agreement to give. In the case before us, the legal title undoubtedly passed to the plaintiff in' error, as a trustee, with his assent expressed by becoming a party to the indenture, and by paying the purchase-money; which made it a gift by him to the children, perfected by delivery to their use.

But even if we were to take the deed to be, not a conveyance of the legal estate in trust, but an executory agreement to create a trust, it is far from clear that the result would be different. Natural affection, though not a valuable, is a meritorious consideration; on the foot of which, an agreement by a father to secure a provision for his child has been enforced in equity, by reason of the obligation of parents to provide for their offspring. Thus, a covenant with a son to renew a lease, was enforced in Husband v. Pollard, cited 2 P. W. 467; and in Goring v. Nash, 3 Atk. 186, a father’s covenant to settle an estate on his son was specifically decreed. In such a case, a legitimate child is not held to be a volunteer, though it was held in Fursaker v. Robinson, Prec. in Chan. 475, that a bastard is so. In corroboration of the principle may be mentioned those cases in which equity has supplied the surrender of a copyhold, and a defective execution of a power in favour of a legitimate child.

As the purposes of these trusts required the legal estate to be vested in the plaintiff in error, it was not executed in the children by the statute; and all illustrations from the nature of a use are consequently beside the question, which stands before us as it would have stood had the statute of uses never been enacted. If the estate were executed, the plaintiff in error would not have the shadow of a case; for it is an elementary principle, that a purchase by a father in the name of his child, is frimá facie an advancement, though the legal presumption that it is so may be rebutted by circumstances — such, however, as are not to be found in the case before us. In every aspect, then, the case was with the plaintiff below; and though we regret that the defendant settled the estate on a mistaken belief that he would have no more children by the same venter, yet, as he has done so, he is bound by it.

Judgment affirmed.

         DENNISON v. GOEHRING.
      A father purchased land with his own money, and toolc a conveyance to himself, in trust, to demise the premises and apply the rents to the maintenance and use of A., B., and C., his children. Equity will enforce the trust and compel an account.
      Appeal from the District Court of Allegheny, in equity.
      This was a bill by Goeliring and wife against Dennison, setting forth the will of Jeremiah Sturgeon, by which he devised his estate to his wife for life, remainder to his children, of whom the wife of Dennison was one. That the deed, (mentioned in the case of Dennison v. Goehring, ut sup.) was executed by the widow and children of Sturgeon, and by Dennison and his wife, in consideration of $2000 and the rents reserved, by which certain real estate was conveyed to Dennison upon the trusts therein mentioned. That Dennison had managed the estate and received the rents, and complainants wife was one of the children, cestuis que trust, in the deed mentioned. An account and the general prayer for relief was added. A demurrer being overruled, and the bill taken pm confesso, an account was decreed. Subsequently the defendant was permitted to file an answer without prejudice to the decretal order. The matters admitted before the master, which were relied on, were that the cestuis que irust had no properly of their own, and that since the execution of the deed Dennison had eight children born, who were all living. There was an averment of mistake in the deed, but of this there was no proof. A final decree on the master’s report having been made, the exceptions on appeal were, that the ease showed no equity; that it was not shown respondent was trustee for complainants; that the trust was one equity would not enforce.
      Kennedy, J. — If the phraseology and tenor of the tripartite deed, in which Samuel Dennison, the appellant, is made the grantee and releasee, be attended to, it is very clear that no portion of the property thereby granted or released to him and his heirs, was intended by the parties to be granted or released to him or them for his and their benefit. On the contrary, it is expressly given to him in fee, in trust for the use of Jeremiah Sturgeon Dennison, Mary Jinn Dennison, and Jlgnes Dennison, (children of the said Samuel Dennison at the time,) their heirs and assigns for ever, in the maimer therein particularly mentioned and appointed; as that the said Samuel Dennison, his heirs and assigns, should from time to time demise .and lease the property for such term or terms, to such person or persons, and for such rent or rents, as to him or them might seem expedient, and apply the proceeds thereof equally, share and share alike, to the maintenance and education of the said Jeremiah Sturgeon Dennison, Mary Ann Dennison, and Agnes Dennison, children of the said Samuel Dennison: Providing, that if either of the said Jeremiah, Mary Ann, and Agnes, or any of them, should die without leaving lawful issue, the whole of the said rents should be applied to the use of the survivors or survivor; but if either or any of them should die leaving lawful issue, then such issue to enjoy such share of said rents as would have been enjoyed by the parent or parents of such issue. And thus throughout the whole deed, the sole and exclusive use and benefit of the property granted, released, or intended to be so, is expressly declared to be for the said Jeremiah, Mary Ann, and Agnes, their neirs and assigns for ever, except in the case of either or any of them dying without leaving lawful issue, when the use of the whole of the rents of the property is given to the survivors or survivor, their heirs and assigns for ever. In no instance, however, throughout the whole deed, is the property, or any portion of it, given to - Samuel Dennison, the appellant, for his own use or that of his lieirs, but granted or released to him, “ to have and to hold the same to the said Samuel Dennison, his heirs and assigns, in trust," &c., thus excluding him and his heirs from all use and benefit in the property granted — esyiressio vmms est exclusio allerius. By the terms of the deed, and from the circumstances of Jeremiah, Mary Ann, and Agues being minors, the appellant would appear to have been entitled not only to receive the rents, issues, and profits of the estate, but to retain in his hands any surplus which might remain of the share of any one of them, after paying the expenses of his or her maintenance and education until he or she should attain full age, when he would be bound to pay it over, with such interest as might with ordinary care have been made thereon, alter deducting all reasonable expenses attending the execution of the trust. And further, after their attaining full age, he would be bound to pay over all rents, issues, and profits subsequently received, as soon as received, after deducting therefrom compensation for the trouble and expenses of collection. And upon the deaths of the said Jeremiah, Mary Ann, and Agnes, the said appellant is expressly declared to hold the premises in trust for the use of the right heirs and legal representatives of the said Jeremiah, Mary Ann, and Agnes, their heirs and assigns for ever: provided none of them should die leaving lawful issue, but if they did, then in trust for the use of the survivprs or survivor of them, their heirs or assigns for ever. Now there is certainly nothing expressed on the face of the deed, which would seem to have been intended by the parties to countervail any of the provisions or uses which have just been cited. From the authorities on the subject, it is clear that the uses for which a conveyance of real estate is made, when clearly expressed in the deed of conveyance, must prevail; but when no consideration is expressed nor use declared, it may enure to the benefit of the grantor or former owner of the estate. See Co. Lit. 271; 1 Cruise Dig. Tit. XI. ch. 4, sec. 19. The mere want of a valuable consideration will not of itself, without any auxiliary circumstances, as Chancellor Kent says, 4 Comm. 306, create a resulting trust, and convert a grantee into a trustee; for this, as Mr. Sanders has truly observed, would destroy tire effect of every voluntary conveyance. There must be the absence of both a consideration and a declaration of the use. Thus, where the use is expressly limited away during the life of the grantor, no use can result to him, whether he has received a consideration or not: Cr. Dig. Tit. XI., ch. 4, sec. 30, 31. If this doctrine be correct, the only ground upon which the counsel of the appellant would seem to have relied, as a stipport of his claim, must be considered as removed or gone. His notion appears to be, that because the moneyed consideration mentioned in the deed of conveyance came from the grantee, the estate thereby conveyed ought to be regarded as enuring to his benefit, notwithstanding an express declaration of a use to the contrary; and that his children shall derive no advantage therefrom, though the purchase appears to have been made for their exclusive benefit This would be in direct opposition to every principle that has been mentioned on the subject, both in law and equity, and indeed contrary to every day’s practice, whereby parents make provision for their children, by purchasing estates in their own names for the use of their children. So parents are allowed by law to convey property which they already own, to their children, without any consideration except that of natural affection. Accordingly, where a mother transferred a large portion of her property to her children by her deceased husband, it was held good against a subsequent husband, who married without any knowledge of the fact: Cotton v. King, 2 Pr. Wm. 358; Hunt v. Matthews, 1 Vern. 408. So a husband or a father may convey real estate already acquired, in trust for his wife or child, without any consideration more than the relationship that exists between them; and it will be good not only against himself but his subsequent creditors, when done. without any intent to deceive them: Townshend v. Windham, 2 Ves. sen. 11; 1 Roper on Husband and Wife, 37. If a father, then, may convey property already acquired to his children, or any of them, without consideration, why may he not purchase in trust for their use and benefit? The principle is the same, and must go to sustain the one as well as tiro other. The relationship, between father and child is a sufficient consideration in law, if any were wanting, to support a purchase of real estate by the father in the name of the child, so that the use shall enure to the benefit of the latter, and no trust result to die father, as would be the case were he to purchase the estate in the name of a stranger: Grey v. Grey, 1 Chan. Ca. 296; Ca. T. Finch, 341. And in Back v. Andrews, Prec. in Ch., 1, where J. S. purchased a copyhold estate to himself, his wife, and his daughters. and their heirs, and afterwards surrendered it to the plaintiff and his heirs, for securing a sum of money he owed him, and died, it was held that J. S. was not entitled to any part of the lands, it being an advancement for his wife and daughter, and the husband and wife taking only a moiety thereof by entireties, which became the property of the wife as the survivor of her husband; though it was insisted strongly for the plaintiff, that he ought to have the whole, for the whole of the purchase-money was the money of J. S., and that his wife and daughter were but trustees for him. To have adopted such an argument would, however, have been creating a trust different from that expressly declared in the deed, which seems to he what is sought for in the case before us. The idea, therefore, that the trusts declared in this case cannot be enforced because the purchase was made with the money of the father, and not with that of the children who are named in the deed a§ the cestuis que trust, has neither reason nor authority to support it. In Lechmere v. Carlisle, 3 Pr. Wms, 222, this point is particularly noticed by Sir Joseph' Jekyl, who states in tire most clear and explicit terms, that every cestui que trust, whether a volunteer or not, is entitled to the benefit of the trust; and that there is no reason why the trustee should keep the estate. To permit the appellant to do so in this case, would be to sanction a most flagrant violation of his own agreement, by which he is most clearly bound both in law and equity. In short, I am at a loss to discover even a plausible pretext, .on any ground, for his refusing to execute the trust. The decree of the court below is therefore affirmed, and the appellant directed and ordered to pay the costs of the appeal.