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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 3) online

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copies of certain deeds and powers of attorney, from the office of
the recorder of deeds, &c., which he gave in evidence in support of
his title. The prothonotary allowed the expense of these exempli-
fications in the costs.

Mr. Chester, for the appellant.
Mr. G-. L. Ashmead, contra.

PER CURIAM. The charge is clearly inadmissible. The defend-
ant cannot be required to pay the expense of copies of papers neces-
sary to the establishment of the plaintiff's title.

Cited by the Court, 10 Wright, 235.
See also, 1 Whart. 275 ; 2 Miles 189.



*357] *[PHILADELPHIA, FlJBRUARY 17, 1838.]

Cuthbert and Others against Kuhn and Others.

IN EQUITY.

1. A lot of ground in the city of Philadelphia was granted in fee, the
grantor reserving to himself in fee a certain annual ground-rent ; afterwards
a public street was opened by authority of law through a part of the lot, and
damages were awarded by the Court of Quarter Sessions to the owner of the
lot ; a part of which damages was ordered to be paid to the owner of the
ground-rent: Held (that the ground-rent was apportioned by the opening
of the street, and that the rent was reduced in proportion to the amount of
the lot taken for the public use.J l

2. Equity has jurisdiction to decree an apportionment in such case; but
the proportions must be settled by a jury.

1 1| The decision in this case was in substance that under the above circum
stances equity would in relief of the tenant apportion the rent, he paying the
landlord the principal of the rent so to be extinguished. See Workman v.
Mifflin, 6 Casey 366, 371 ; Voegtly v. Pitts. <fc Ft Wayne Railroad Co., 2
Grant 243 ; Dyer v. Wightman. 16 Smith 429. ||
354



1837.] OF PENNSYLVANIA. 357

[Cuthbert v. Kuhn.]

THIS was a suit in equity, instituted by Mary Cuthbert against.
Hartman Kuhn, Dr. Robert Hare, John Hare Powel, Samuel
Powel, Samuel Powel Griffitts, and Charles Willing.

The bill set forth, that by indenture made on the fifteenth day of
July, A. D. 1794, between Elizabeth Powel, of the city of Philadel-
phia, widow, of one part, and Thomas Cuthbert of the other part,
reciting as is therein recited, the said Elizabeth Powel did grant
and convey unto the said Thomas Cuthbert, his heirs and assigns,
a certain lot or parcel of ground, situate on the east side of Penn
street, in the said city, containing in breadth on the said street
sixty-five feet ; bounded northward by an alley ten feet wide, east-
ward by the river Delaware, southward by ground late of William
Allen, Esquire, and westward by the said Penn street, together with
the appurtenances ; yielding and paying thereof and thereout, unto
the said Elizabeth Powel, her heirs and assigns, the yearly rent or
sum of one hundred and six Spanish silver dollars, and two-thirds
of a dollar, in two equal portions, on the twenty-fifth day of March
and twenty-fifth day of September in every year forever there-
after.

That by sundry mesne conveyances and assurances in the law, all
that part of the said lot of ground, so conveyed by Elizabeth Powel
to Thomas Cuthbert, situate between the east side of Little Water
street or New street, in the said city, and the river Delaware, and
containing in breadth sixty-five feet, together with the appurten-
ances, had become vested in the complainant, in fee, subject to the
said ground-rent of one hundred and six dollars and two-thirds
*of a dollar, which, by agreement among the heirs of the r*oco
said Thomas Cuthbert, on partition being made among them, *-
was to be paid out of that part of the said large lot of ground which
is now held by the complainant.

That the said Elizabeth Powel, after the execution of the said
conveyance, made her last will and testament in writing, bearing
date the twenty-second day of May, A. D. 1819, and proved on the
twenty-fifth day of January, A. D. 1830, wherein she devised certain
messuages and lots of ground, and also all her ground-rent, estate,
(so called,) to the Right Rev. William White, Protestant Episcopal
Bishop, Edward Burd, Esquire, Thomas Mayne Willing, Esquire,
and Edward Shippen Burd, Esquire, and their heirs, upon the fol-
lowing trusts, and subject to the powers, provisions, conditions and
limitations therein mentioned; viz. "to the use of her nephew,
John Hare Powel, for and during his natural life, without impeach-
ment of waste, and from and after the end, expiration, or sooner
determination of that estate by forfeiture, or otherwise, in his life-
time, then to the use of the said trustees and their heirs, during the
lifetime of the said John Hare Powel, in trust to support and pre-
serve the contingent uses and estate thereinafter given or limited,

355



858 SUPREME COURT [Dec. Term,

[Cuthbert v. Kuhn.]

from being defeated or destroyed ; and for that purpose to make
entries and bring actions, as occasions shall be or require ; but
nevertheless to permit and suffer the said John Hare Powel, during
his lifetime, to receive and take the rents, issues and profits thereof,
to and for his own use and benefit; and from and immediately
after the decease of the said John Hare Powel, to the use of his
first son, my great nephew, Samuel Powel, for and during his natural
life, without impeachment of waste : and from and after the end,
expiration, or sooner determination of that estate, by forfeiture
or otherwise, in the lifetime of the said Samuel Powel, then to the use
of the said trustees and their heirs, during the life of the said Samuel
Powel, in trust, to support and preserve the contingent uses and
estate thereinafter given or limited, from being defeated or destroyed ;
and for that purpose to make entries and bring actions, as occasion
shall be or require, but nevertheless to permit and suffer the said
Samuel Powel, during his life, to receive and take the rents, issues
and profits thereof, to and for his own use and benefit ; and from
and immediately after the decease of the said Samuel Powel, to the
use of his first son, lawfully to be gotten, and the heirs of the body
of such son, lawfully issuing ; and for default of such issue, to the
use of the second, third, fourth and fifth son and sons, and all and
every other the son and sons of the said Samuel Powel, lawfully to
be begotten, severally, successively, and in remainder one after
another, as they shall severally be in the seniority of age and
priority of birth, and of the several and respective heirs of the body
and bodies of all and every such son and sons lawfully issuing ; the
*q-q-i elder of such sons, and the heirs of *his body, lawfully is-
-' suing, being always preferred, and to take before the younger
of such sons and the heirs of his and their bodies issuing ; and for
default of such issue, then to the use of the second, third, fourth
and fifth son and sons, and all and every other the son and sons of
my nephew, the said John Hare Powel, lawfully to be begotten,
severally, successively, and in remainder, one after another, as they
shall severally be in seniority of age and priority of birth, and of
the several and respective heirs of the body and bodies of all and
every such son and sons lawfully issuing ; the elder of such sons,
and the heirs of his body, lawfully issuing, being always preferred,
and to take before the youngest of such sons, and the heirs of his
and their bodies issuing ; and for default of such issue, then to the
use of Samuel Powel Griffitts, Junior (son of Dr. Samnel Powel
Griffitts), and his heirs forever: Provided he, the said Samuel
Powel Griffitts shall be living at the time of such default of issue
as aforesaid ; but if the said Samuel Powel Griffitts, Junior, shall
not be living at the time of the default of issue last above-mentioned,
then, and in such case, to the use of my great nephew, Charles
Willing (son of my aforesaid nephew, Thomas Mayne Willing),
356



1837.] OF PENNSYLVANIA. 359

[Cuthbert v. Kuhn.]

and his heirs forever ; being intended by me as tribute of respect to
the memory of my father, whose name he bears.

That the said William White, Edward Burd, Thomas Mayne
Willing and Edward Shippen Burd, or such of them as survived the
testator, and accepted the trust, afterward resigned their said office
of trustees, or have been discharged therefrom by the District
Court for the City and County of Philadelphia, and that Hartman
Kuhn and Dr. Robert Hare have been appointed by the same
tribunal to succeed them in the said office of trustees.

That in pursuance of certain proceedings in the Court of Quarter
Sessions for the county of Philadelphia, an order has been made by
the said court, for the opening of Lombard street, from its present
termination at Front street, to the river Delaware ; by means of
which, a certain portion of the said lot, belonging to the complain-
ant, comprising about thirty-six feet in breadth, by about ninety-
one feet in length or depth, has been taken for the public use ; and
damages have been awarded by the said court to the complainant,
to the amount of eight thousand dollars, of which a portion is pay-
able on account of the said ground-rent.

That the complainant is willing and desirous to , pay off and ex-
tinguish such proportion of the principal amount of the said ground-
rent as is equal to the part thereof, issuing out of so much of the
said lot of ground as has been taken as aforesaid for the public use,
or to_py-0ff and extinguish the whole of the principal amount of
the said ground-rent ; but she is advised, thafrin consequence of the
provisions and limitations in the will of the said Elizabeth Powel
contained, there is no authority in any person at present to receive
the same, or to give a sufficient release, discharge, or extinguishment



*of the same, or any part thereof; and that the due appor-



[*360



tionment of the said ground-rent cannot be obtained by the
ordinary process of law.

The bill then prayed an injunction to restrain the defendants from
proceeding to recover the whole amount of the ground-rent and any
undue proportion thereof, and for further relief.

The answer of the defendants, Hartman Kuhn, Robert Hare,
John Hare Powel, Samuel Powel, a minor under twenty-one years
of age, by his guardian John Hare Powel, Samuel Powel Griffitts,
and Charles Willing, admitted the conveyance of the lot as stated
in the bill ; that Mrs. Powel made her will as there set forth ; that
the trustees resigned and were discharged ; and that the defendants
Kuhn and Hare were appointed in their place ; and that Lombard
Street had been opened through the lot and damages assessed for
the same.

The answer then proceeded to aver that after the assessment
of damages in the Quarter Sessions, an auditor was appointed
by that court, to make distribution of the said damages, &c., be*

357



360 SUPREME COURT [Dec. Term,

[Cuthbert v. Kuhn.]

tween the complainant, and the estate of the said Elizabeth Powel,
devised in trust, as stated in the bill ; and that the said auditor
made his report thereon to the said court, on the 27th day of
February, A. D. 1836, and therein reported that the value of the
ground-rent payable by the said complainant to the said John
Hare Powel, was $1822.22, and that that sum ought to be paid to
the trustee of the said estate, out of the said sum of $8000 ; which
report was confirmed absolutely. The answer further stated that
the complainant did, by her son and agent, Mr. Allen Cuthbert,
make known to the said John Hare Powel, her request and desire
that the said ground-rent should be entirely extinguished and re-
leased ; and that the said John Hare Powel should agree and con-
sent that the said sum of $1822.22 should be received by the
trustees, in lieu, and as a full satisfaction thereof, and be by them
held, appropriated and invested as part of the said trust estate ;
and in consideration thereof, and of other circumstances, the said
John Hare Powel did present his petition to the District Court for
City and County of Philadelphia, on the 16th day of April, A. D.
1836. praying that the said court would order and direct that the
said Hartman Kuhn and Robert Hare should receive and take the
said sum of $1822.22; which sum was included in and formed part
of a larger sum of $6097.22, the assessment and apportionment of
other damages, awarded to the said trustees of the estate devised as
aforesaid ; and should hold the same upon the uses, trusts and dis-
positions, contained in the will of the said Elizabeth Powel, of and
concerning the real estate, devised and bequeathed thereby, in
trust, for the use of John Hare Powel, as set forth in the said bill,
according to the force and effect of an Act of Assembly passed the
*3611 "^ ^ ^ February, A. D. 1836, entitled, *" An act rela-
' tive to part of the estate of Elizabeth Powel," and should
invest the same according to the provisions thereof, to be approved
by the court. And the said court made the order as prayed, and in
the foregoing words. And afterwards, viz., on the 26th day of
October, A. D. 1836, the said Hartman Kuhn and Robert Hare
having this authority to receive the said sum of money, the said
Court of Quarter Sessions made an order that the treasurer of the
County of Philadelphia should pay to them as trustees of the said
estate the said sum of $1822.22.

That the County of Philadelphia then being and having for some
time been unable to pay and satisfy the damages awarded as afore-
said, the county board did, sometime in the year 1836, authorize
and direct the commissioners of the said county to borrow a large
sum of money, on the credit of the county, at five per cent, per
annum, and to issue therefor certificates of debt, not redeemable
before the year ; and part thereof was directed to be appro-

priated by the said commissioners to payment of damages for streets
358



1837.] OF PENNSYLVANIA. 361

[Cuthbert r. Kuhn.]

opened, &c., and among them Lombard street as aforesaid ; and the
said trustees, considering it to be most advisable for the estate, did
subscribe thereto the whole amount of damages awarded to them, to
wit, the sum of 6097, which included the said sum of $1822.22,
and did agree with the complainant, who was represented by her
said son and agent, Allen Cuthbert, that in consideration of their
subscribing the whole sum of 1822.22 and receiving it in extin-
guishment of the said ground-rent, the said complainant would con-
vey to them as trustees, for the uses and purposes of the trust, one
or two sufficient, good and irredeemable ground-rents of the yearly
value of 106.61, and receive, therefor, the said subscription to
the said county stock for 1822.22 ; and that the said complainant
failed to perform her said agreement, having been advised, as the
defendants are informed by the bill that the trustees aforesaid can-
not extinguish or release the said ground-rent.

The answer further set forth that the defendants were advised
and humbly insisted that neither the said Hartman Kuhn and
Robert Hare, trustees as aforesaid, nor the said John Hare Powel,
have any right, title or authority to extinguish or release the whole
or any part of the said ground-rent, payable by the said complain-
ant, and that the complainant is not entitled to claim an appor-
tionment of the said rent, but that the whole is chargeable on
the remainder of the said lot or parcel of ground ; and that the
said trustees ought to be reinstated in, and have full possession
of the whole of the said ground-rent, and that the complainant
should take and receive the said sum of 1822.22, subscribed
in county stock as aforesaid in the full value of the said ground-
rent.

*The case came on for hearing on a former day on the r*qf.?
bill and answer ; when an objection having been taken that *
the tenants of that part of the part which lies westward of Little
Water street, ought to have been made parties, the court gave leave
to amend by adding the necessary parties.

The case accordingly stood over for the purpose ; and on a sub-
sequent day on the petition of the persons holding that part of the
lot which lies between Front and Little Water street, they were
admitted as parties, and the bill was amended accordingly.

The case came on again to be heard on the amended bill and
answer.

Mr. T. I. Wharton, for the complainants.

The first question in this case is, whether the ground-rent was
not apportioned by the opening of Lombard street, and the con-
sequent taking a part of the ground for public use. It is certain
that there is no power in the defendants, or any of them, to ex-
tinguish or release the whole ground-rent. Bv the will of Mrs.

359



862 SUPKEME COURT [Dec. Term,

[Cuthbert v. Kuhn.]

Powel, this property with other real estate, is devised to Mr.
Powel for life, with remainder to trustees to preserve contingent
remainders, in strict settlement, without any power to convey or
release. The Act of Assembly referred to in the answer does not
apply to this case. It merely authorizes the trustees to sell cer-
tain vacant lots of ground on redeemable ground-rents. The con-
sequence is that either the whole of this ground-rent has been
thrown upon the remaining part of the original lot, or it has been
apportioned by operation of law. Now, the principle of the deter-
mination of Ingersoll v. Sergeant, 1 Whart. 337, where it was
decided that ground-rents in Pennsylvania were not governed by
the strict rules which prevail in respect to rents chargeoin^KngTand,
seems to govern this case. In reason it would seem toHBevery
plain, that when a part of the land out of which a rent issues, and
from which the tenant derives his means of paying it, is taken
away without any fault on his part, he ought to be relieved pro
tanto. And the authorities support this view. It seems that rents-
service were apportion able at common law, and before the statute
of quia einptores7~2 Inst. 502. In 2 Co. Litt. (b) it is said, that
if land be granted with a reservation of rent, and part of the land be
evicted by an elder title, the rent shall be apportioned. In 1 Roll.
Abr., p. 263 c., tit. Appointment, there are several cases showing
that rent shall be apDortioned when part of the land is taken by
act of God or act of the"~Iaw ; pi. 2, 4, 5, and Id. p. 239. Gilbert
on Rent, p. 186 ; 6 Bac. Abr. 49. In the case of the Bank of
Pennsylvania v. Wise, 3 Watts 404, Judge Kennedy says that the
exigencies and interests of society have broken in upon the old rule
*ogo-i in respect to entire contracts, and caused it to *yield to the
-" accommodation oF mankind, in apportioning rent wherever
there has been either by act of law, or by act of the party, a divi-
sion made of the land out of which the^ rent issues, or of the rever-
sion to which it is incident. These authorities apply to proceedings
in rein, in respect of the liability of the land to rent. Even in case
of proceedings upon the personal covenant of the tenant, there are
authorities to show that the landlord will be restrained in equity,
when buildings upon the demised land have been destroyed, and he
has received the insurance money. Brown v. Qiiilter, Ambler
619. In Hare v. Groves, 3 Anstr. 687, it is true, that the tenant
was held liable in covenant, but there was no insurance. Here the
landlord may receive an equivalent for the loss, in the_damages
a\v;mK' 1 by the Quarter Sessions. There are many cases irf which
equTfy interferes and apportions, where relief cannot be had at law ;
as in Newton v. Rowse, 1 Vern. 460, and other cases cited and
approved by Judge Story, in his Commentaries on Equity, vol. 1,
p. 456, 478, (fee., where he shows the advantage of the proceed-
ings in chancery. To throw the whole rent upon the remaining
360



1837.] OF PENNSYLVANIA. 363

[Cuthbert . Kuhn.~|

part of the lot in this case, would be unjust towards the present
tenants, who became purchasers on the footing of the rent bearing
a certain proportion to the extent of the ground held by them. The
power of the court to decree an apportionment is clear; but the
actual apportionment it appears from the authorities must be made
by a jury. Rolle's Abr. 237 ; 6 Bac. Abr. 50.

Mr. Hare, for the respondents.

The foundation of this bill, and of the argument in support of
it, is an imaginary equity in the complainants, to hold their land
discharged of an incumbrance, of which, by its nature, the entirety
attaches upon every part of the ground, because the public author-
ity has, by due course of law, abstracted a portion of it for public
use, paying a just compensation therefor, and leaving nearly five
times as much as is necessary to realize the remedies of the defend-
ant, the ground landlord.

The facts, as they appear in the bill and answer, are, that a por-
tion, about one-half, or less, of the lot out of which the rent issues,
has been taken for a street ; that compensation to the amount of
$8000, has been awarded to the complainant, Cuthbert, for the
part taken. The part remaining being more than one-half, and of
course worth about $8000, is here to pay nearly five times more
than enough to secure the rent ; and the prayer of the bill is, that
the court will compel the defendant to abandon that security for
one-half of the rent, and accept the county stock, or money at most;
in^paynrerrtrthereof. The rent has been assessed at par, but being
irredeemable, is, of course worth more. So that the effect of a
decree will be, to make *the defendants sell their rent, or r*q fi
part of it, for less than the fair value.

The argument for the complainants is not founded upon a hard-
ship suffered by them as a consequence of an act, done in invitos,
but upon the simple fact that a part of the land has been abstracted
by the act of the law. The nature of the rent, or the contract out
of which the rent arose, must be regarded ; and as it is an incident
of it, that the whole of the rent attaches upon every part of .the
land, the court is now asked to give to this particular species of con-
tract a new character ; that is to relieve against its known and anti-
cipated consequences, occurring without hardship to the complain-
ants, or advantage to the defendants.

A Court of Equity does, it is true, exercise a power of appor-
tionment, as it exercises any other power of relief against hardship
or mistake, &c., but it never assumes to make itself the moderator
rei, or to convert one contract into another, or to change securities
upon speculative wrong ; and it certainly never interferes against
an innocent party, when the wrong complained of, does not proceed
from the defendant, or where it is appreciable in money, and still

361



364 SUPREME COURT [Dec. Term,

[Cuthbert t>. Kuhn.]

less where the wrong, such as it is, is imposed by the law, and the
law itself gives compensation. The complainant is to receive the
whole value of the rent, and has one half of the lot to pay the rent,
so that he is clearly no loser. Those cases in which equity relieves,
are of hardship or accident or eviction, or death, in which cases it
apportions the rent.

If the whole lot had been taken, the owner of the rent would
have an equity to come upon the fund awarded for the land. But
upon what ground could he claim the money, where enough was
left to satisfy his security, and the owner of the rent preferred
to take the money: yet his reason would be the same, a bare
abstraction of the land.

The act of the law should work wrong to no man. Here it is
made to -work to the advantage of the complainants, for it pays
the full value of land and rent to them, and improves the remain-
der ; and it works to the injury of the defendant in compelling
him to change and diminish his sureties. The equity of the bill
is as vague as would be that of the defendants to an increased rent
because of the increase of the value of the land by the act of the
law.

The opinion of the court was delivered by

GIBSON, C. J. This is, in one respect, a more obvious case of
apportionment than was Ingersoll v. Sergeant. There the act
of apportionment was done without the concurrence of the tenant ;
and had the statute of quia emptores been in force here, as it was
strangely enough supposed to be till after the second argument, I
am unable to see how the necessary consequences of releasing, by

*3651 * act ^ ^ e P artv ' P arce l f an estate burthened with a
J rent-charge, could have been avoided. In England a rent
reserved with a clause of distress in a conveyance in fee in a word
a feefarm rent is turned into a rent-charge by force of that stat-
ute which, abolishing intermediate tenure while the reservation
severs the rent from the indispensable incident fealty, throws the



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 3) → online text (page 41 of 74)