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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 1) online

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mon recoveries, for the assurance of lands and tenements, in such
case *used and accustomed; and thereupon it is hereby r* 144-1
covenanted and concluded and agreed, by and between
the said parties hereto, for themselves and their respective heirs,
in manner following, that is to say, that the said Thomas Newark,
party hereto, shall and will, before the end of December term
next coming, permit and suffer the said Samuel Guthrie to sue
forth and prosecute against him, the said Thomas Newark, party
hereto, one writ of entry sur disseisin -en le post, returnable be-
fore the justices of the Court of Common Pleas, for the County
of Philadelphia, thereby demanding against the said Thomas
Newark, party thereto, the premises aforesaid, with the appur-
tenances, by such name and description, and in such manner and
form as by counsel learned in the law shall be advised. And
upon which, said writ of entry so to be sued forth and prosecuted,
the said Thomas Newark, party hereto, by himself, or by his at-
torney or attorneys, shall appear gratis, and vouch to warranty
Joseph Fox, who shall appear and imparle, and afterwards
make default, and depart in contempt of the court, so that judge-
ment may be thereon had for the said Samuel Guthrie, to recover
the premises aforesaid, against the said Thomas Newark, party
hereto, and for the said Thomas Newark, to recover in value



144 SUPREME COURT [Dec. Term,

(Sharp r. Thompson.)

against the said Joseph Fox, the common vouchee, to the end
that one perfect common recovery, with single voucher, may be
thereupon had and suffered, and all and every other thing and
things may be done, needful and proper for suffering the same,
according to the course of common recoveries in such cases used ;
and the same recovery is also to be executed by one writ of habere
facia* seisinam accordingly. And it is hereby covenanted and
agreed, by and between the parties to these presents, for them-
selves, and their, and each of their heirs, that the said recovery
so as aforesaid, or in any other manner to be had and suffered of
the premises aforesaid, shall be and enure and shall be deemed
and adjudged and taken, and is meant and intended, and by the
said parties to these presents, is hereby declared to be and enure,
and the said Samuel Guthrie and his heirs, from, and immediately
after the suffering, the same shall be and stand seized of the said
premises, with the appurtenances, to and for the only proper use,
benefit and behoof of the said Samuel Guthrie, his heirs and
assigns for ever, and to and for no other use, intent or purpose
whatever. In witness whereof the said parties have hereunto in-
terchangeably set their hands and seals. Dated the day and year
first above written.

THOMAS NEWARK, [L. s.]
SAMUEL GUTHRIE, [L. s.]
Sealed and delivered in the
presence of us,

ABM. SHOEMAKER,

JOEL RICHARDSON, .

JOHN S. LITTLER.



r*14'51 ^ November, Anno Domini, 1797,

' -I before me the subscriber, one of the Justices of the
Peace for the County of Philadelphia, personally appeared
Thomas Newark and Samuel Guthrie above named, and ac-
knowledge the above written indenture to be their act and
deed, for the uses and purposes therein mentioned, and desired
the same might be recorded as such. Witness my hand and
seal the day and year aforesaid.

JOSEPH BIRD, [L. s.]"

The deed of the 19th of December, 1797, by Guthrie and wife,
to Littler, and that of the 23d of July, 1803, from Littler and
wife, to Smith, were not material, except as evidence of the de-
fendant's title the conveyances being in the ordinary form.
The consideration expressed in the deed of Guthrie to Littler,
was the same as that stated in the first deed of Newark to Guth-
rie, viz. $2221.79.



1835.] OF PENNSYLVANIA. 145

(Sharp v. Thompson.)

The proceedings in relation to the -common recovery, were as
follows :

On the 24th of November, 1797, Thomas Newark, by, deed
poll reciting, that he was about to proceed to sea, " and being
desirous that a common recovery may be suffered of my estate,
hereinafter mentioned," constituted Robert Porter, of the City
of Philadelphia, attorney at law, and Abraham Shoemaker, of
the same city, conveyancer, jointly and severally, his true and
lawful attorney, for the following purposes, viz. : " For me, and
in my name, to appear before the Justices of the Court of Com-
mon Pleas, for the County of Philadelphia, before the end of
December term next, or any other term after the date hereof,
and permit and suffer Samuel Guthrie, of the said city, merchant,
to sue forth and prosecute against me, the said Thomas Newark,
one writ of entry sur disseisin en le post, returnable before the
said Justices of the Court of Common Pleas for the County of
Philadelphia, thereby demanding against me, the said Thomas
Newark, all that messuage or tenement, and lot or piece of
ground thereunto belonging, situate on the south side of Spruce
Street, between Delaware Second and Third Streets, in the said
city, with the appurtenances, which, in the testament and last
will of my father, Thomas Newark, deceased, dated the 12th of
December, 1786, is devised to me in fee tail ; by such name and
description, and in such manner and form, as by counsel learned
in the law shall be advised ; and upon which said writ of entry
so to be sued forth and prosecuted against me, the said Thomas
Newark, to appear, gratis, and vouch to warranty Joseph Fox,
who shall appear and imparle, and afterwards make default and
depart in contempt of the court, so that judgment may be there-
upon had for the said Samuel Guthrie, to recover the premises
aforesaid against me, the said Thomas Newark, and for r*i4g-i
*me to recover in value against the said Joseph Fox,
the common vouchee ; to the end that- one perfect common re-
covery, with single voucher, may be thereupon had and suffered,
and all and every other thing and things may be done, needful
and proper for suffering the same, according- to the course of
common recoveries, in such cases used ; and the same recovery
is also to be executed by one writ of habere facias seisinam ac-
cordingly; and the said recovery so as aforesaid, or in any
other manner to be had and suffered of the premises aforesaid,
shall be and enure, and shall be deemed, adjudged and taken,
and is hereby meant, intended, and declared to be, and enure,
from and immediately after suffering the same, to and for the
only proper use, benefit, and behoof of him, the said Samuel
Guthrie, his heirs and assigns forever, and to and for no other
use, intent or purpose whatever: and in case the said recovery



146 SUPREME COURT [Dec. Term,

(Sharp v. Thompson.)

cannot be so, as aforesaid, suffered and executed of the said
premises at the time aforesaid, I do hereby authorize and fully
empower my said attorneys, jointly and severally, to appear for
me, and in my name, before any Court or Courts of record in
Pennsylvania, in any term after the date hereof, and there
permit and suffer any person or persons whatsoever, to sue forth
and prosecute against me one or more writ or writs of entry,
tsur disseisin en le post, returnable before the justices of the said
court or courts, demanding the premises aforesaid, so .that one
or more good and perfect common recovery or recoveries, with
single, double, or treble vouchers, may be had and suffered of
the premises aforesaid, according to the usual course of common
recoveries, for the assurance of lands and tenements, in such
case used and accustomed : and all and whatsoever my said attor-
ney and attorneys, jointly and severally, shall lawfully do or act
in and about the premises, by virtue hereof, I do hereby ratify,
confirm, and allow the same, as if I was present and did the same
in my own person. In witness whereof, I, the said Thomas New-
ark, have hereunto set my hand and seal, this twenty-fourth day
of November, anno Domini one thousand seven hundred and
ninety-seven.

THOMAS NEWARK, [L. s.]
Sealed and delivered in the
presence of us,

JOEL RICHARDSON,

JOHN S. LITTLER."

Annexed to this power of attorney, were the following acknowl-
edgments :

" On the 24th day of November, anno Domini 1797, before
me, the subscriber, one of the Justices of the peace for the County
of Philadelphia, came the before-named Thomas Newark, who is
T*1471 now of * lawful age, and acknowledged that he signed,
- sealed, and delivered the foregoing letter of attorney as
his act and deed, for the uses and purposes therein mentioned and
described, and desired the same might be recorded as such. Wit-
ness my hand and seal the day and year aforesaid.

JOSEPH BIRD, [L. s.]

On the 26th day of January, anno Domini 1798, before me,
the subscriber, President of the Court of Common Pleas for the
County of Philadelphia, came the before-named Thomas Newark,
who is now of lawful age, and acknowledged that he signed,
sealed and delivered the foregoing letter of attorney, as his act
and deed, for the uses and purposes therein mentioned and de-
scribed, and desired the same might be recorded as such. Wit-
ness my hand and seal, the day and year aforementioned.

JOHN D. COXE, [L. s.]"



1885.] OF PENNSYLVANIA. 147

(Sharp 75. Thompson.)
The record of the common recovery -was as follows :

"March Term, 1798. Common Recovery Samuel Ghithrie,
Demandant, v. Thomas Newark, Tenant to the use of Sam-
uel Gruthrie.

Pleas enrolled at Philadelphia, before the Hon. John D. Coxe,
Esq., president, and his associates, judges of the Court of Com-
mon Pleas, in, and for the County of Philadelphia, in the Term of
March, in the year of our Lord one thousand seven hundred and
ninety-eight.

Philadelphia County, ss. Samuel Guthrie of the City of Phila-
delphia, merchant, in his proper person, demandeth against
Thomas Newark, of . the City and County of Philadelphia, mari-
ner, a certain messuage or tenement, and lot or piece of ground,
now in the tenure of said Samuel, and Hannah, his wife, situate
on the south side of Spruce Street, between Delaware Second
and Third Streets, in the said city, containing in breadth,
eighteen feet, and in length or depth, fifty-one feet. Bounded
eastwardly, by ground formerly of Nathaniel Allen, deceased ;
southwardly, by ground formerly of Henry Babcock, deceased ;
westwardly, by a messuage and lot, formerly of Joseph Webb,
and since of George Wells ; and northwardly, by Spruce Street
aforesaid, together with the appurtenances, subject to a yearly
rent of three pounds twelve shillings, lawful money of Pennsyl-
vania, to Nathaniel Allen, his heirs and assigns for ever, which,
by the testament and last will of Thomas Newark, father of the
said Thomas Newark, bearing date the twelfth day of December,
anno Domini one thousand seven hundred and eighty-six,
recorded in the register's office at Philadelphia, was devised to
his son, the said Thomas Newark, which he claims ( to be his right
and inheritance, and into which, the said Thomas hath not entry,
*unless after a disseisin, which Hugh Hunt thereof rfc-Mci
unjustly, and without judgment, hath made to the afore-
said Samuel Guthrie, within thirty years, now last past ; and
whereupon he saith, that he himself was seized of the tenements
aforesaid, with the appurtenances, in his demesne, as of fee and
right, in time of peace, in the time of the commonwealth that
now is, by taking the profits thereof to the value, &c., and into
which, &c., and thereupon he bringeth suit, &c. : and the said
Thomas Newark, by his attorneys, Robert Porter, of the City of
Philadelphia, Esquire, and Abraham Shoemaker, of the same
place, conveyancer, duly constituted and appointed by letters of
attorney, bearing date the twenty-fourth day of November, in the
year of our Lord one thousand seven hundred and ninety-seven,
comes and defends his right, when, &c., and thereupon voucheth
to warranty Joseph Fox, who is present here in court, in his



148 SUPREME COURT [Dec. Term,

(Sharp e. Thompson.)

proper person, and the tenements aforesaid, with the appurte-
nances to him freely warranteth, &c., and hereupon the said
Samuel demandeth against the said Joseph Fox, tenant, by his
own warranty, the tenements aforesaid, with the appurtenances
in form aforesaid, &c., and whereupon he saith that he himself
was seized of the tenement aforesaid, with the appurtenances in
his demesne, as of fee and right in time of peace, in the time of
the commonwealth that now is, by taking the profits thereof, to
the value, &c., and into which, c., and thereupon he bringeth
suit, &c., and the aforesaid Joseph Fox, tenant by his own war-
ranty, defends his right, when, c., and saith, that the aforesaid
Hugh did not disseise the said Samuel Guthrie of the tenements
aforesaid, with the appurtenances, as the said Samuel, by his writ
and count aforesaid, above, doth suppose, and of this he puts
himself upon the country, and the aforesaid Samuel thereupon
craveth leave to imparle, and he hath it; and afterwards the
aforesaid Samuel cometh again here into court, in this same time,
in his proper person, and the aforesaid Joseph, although solemnly
called, cometh not again, but hath departed in contempt of the
court, and maketh default : Therefore, it is considered that the
aforesaid Samuel Guthrie, do recover his seisin against the said
Thomas Newark, of the tenements aforesaid, with the appurte-
nances, and that the said Thomas, have of the lands of the said
Joseph, to the value, &c., and the said Joseph in mercy ; and
hereupon the said Samuel prays a writ of the commonwealth, to
be directed to the sheriff of the county aforesaid, to cause full
seisin of the tenements 'aforesaid, with the appurtenances, to be
delivered to him, and it is granted to him, returnable here forth-
with. And afterwards, in this same term, to wit, the
day of March, cometh the said Samuel in his proper person, and
the sheriff, namely, Jonathan Penrose, Esquire, now returneth,
that he, by virtue of the writ aforesaid, to him directed, on the
day of the same month, did cause the said
r*14Ql *Samuel Newark to have full seisin of the tenements
aforesaid, with the appurtenances as he was com-
manded."

" Robert Porter, Esq., a special Power of Attorney, filed with this
common Recovery, vouches to Warranty Joseph Fox, the com-
mon vouchee."

Upon the facts found by the special verdict, the District Court
ordered judgment to be entered for the plaintiff below ; where-
upon the defendant removed the record to this court ; and as-
signed the following errors :

"1. That the court below erred in giving judgment for the
plaintiff below, because Thomas Newark, Jr., did not, as the court



1835.] OF PENNSYLVANIA. 149

(Sharp v. Thompson.)

below supposed, take an estate tail, under the will of his father,
but took a fee simple, with condition of defeasance.

2. That the court below erred in giving judgment for the plain-
tiff below, because, if Thomas Newark did, as they supposed, take
an estate tail, under the will of his father, that estate tail was
barred by the common recovery."

Mr. C. Ingersoll, for the plaintiff in error :

1. Thomas Newark, the devisee, took a fee simple in the house
and lot, liable to be defeated by his death without issue. [Upon
an intimation by the court, that they considered the question
settled by repeated adjudications, Mr. Ingersoll abandoned this
point.]

2. The common recovery was well suffered. The whole dif-
ficulty has arisen from the mistake of the scrivener, who, instead
of drawing a re-conveyance from Guthrie to Newark, drew a sec-
ond conveyance from Newark to Guthrie, which the parties exe-
cuted in ignorance. This is a mistake of the kind which the courts
always allow to be corrected. 2 Black. Com. 358 ; 5 Cruise.
Dig., p. 440, tit. 36. c. 6, s. 22 ; Id. 437, 438. It is not neces-
sary, however, to contend for an amendment. The intention of
the parties is obvious, and the court will carry it into effect by
disregarding the second deed, and treating it as a nullity. The
first deed may then be considered as merely a declaration of the
uses of the recovery, and not as divesting the estate of Newark.
The record is prima facie evidence of there being a good tenant
to the prcecipe ; and it is no matter whether he is a tenant by
right or wrong. Wilson on Fines, &c., 275 ; Pigott on Ditto,
28, 40, 41. There was nothing to the contrary but the deeds,
and no possession on the part of the plaintiff. Lord Cromwell's
case, (2 Rep. 74 ;) Pigott, 59, 60 ; 2 Black. Com. 362, 363 ; 5
Cruise. Dig. 450. In England, the Stat. of Geo. 2, renders all
recoveries *good, after twenty years possession. Here, r*i50i
there has been possession for thirty-seven years ; and

the court will presume every thing in favor of it. It will be re-
marked, that all these instruments were acknowledged on the 24th
of November, before the same magistrates, and with the same
witnesses. They may be considered as the same transaction.
The case of Doe ex. dem. Odiorne v. Whitehead, (2 Burr. Rep.
704,) shows how far the courts will go in supporting these species
of assurance. If. no deed to make a tenant to the prceripe were
produced, the court would presume one, or presume the tenant in,
by disseisin. 3 Rep. 59 ; 1 Mod. Rep. 117 ; Jacob's Law Diet.
tit. Recovery. Equity will correct mistakes in deeds and wills.
1 Mad. Chan. 44, 55.



150 SUPREME COURT [Dec. Term,

(Sharp 9. Thompson.)

Mr. Norris and Mr. James S. Smith, contra. The act of the
27th January, 1749-50, "for barring estates tail," declares that
fines and common recoveries, " suffered duly and according to the
common statute laws of England," shall have the like force and
effect as in England. No greater power or effect is given to them.
Now, there are certain forms necessary to give validity to a com-
mon recovery ; and these cannot be dispensed with. 2 Black.
Com. 360 ; 5 Cruise. Dig. tit. 36, c. 1, s. 9. In the case of a
recovery with a single voucher, as here, the tenant in tail must
be tenant to the prceripe, and must be in possession of the pre-
mises. 5 Cruise. Dig. tit. 36, c. 2, s. 10 ; Stump v. Findley, (2
Rawle, 175.) Here it appears that when the recovery was suf-
fered ; that is, at March term, 1798, the title was in Littler. If
Thomas Newark, Jr., conveyed the estate by feoffment, it was a
discontinuance. 3 Black. Com. 171. Our act of 1715 says,
that deeds of bargain and sale shall have the effect of a feoffment.
At all events, Newark conveyed all his own estate. There is no
evidence of any intention that Guthrie should reconvey to New-
ark, or of any mistake. There is nothing on the record to amend.
The record is all right on its face ; but we show the recovery to
be wrong, by proving that Newark had neither title nor pos-
session at the time. In Bridges v. The Duke of Chandos, (2
Burr. Rep. 1073,) Lord Mansfield said, that if a person had
pmver to suffer a recovery, and thereby bar an estate tail, omnia
prcemmuntur rite et solernniter egse acta until the contrary ap-
pears ; but if the contrary appears, there is an end to the pre-
sumption. And he mentioned the case of the Earl of Suffolk,
where blundering deeds were produced, which appeared clearly to
be wrong, " and it was manifest upon the evidence disclosed, that
there was NO good tenant to the prcecipe" That is the case here.
The deed to lead the uses, forms no part of the record, and, con-
sequently, could not be amended, even if there were anything to
amend, by which there is not. They also cited Cruise on Recov-
eries, &c., 8, 12 ; Coventry on Do., 32, 51 ; Pigott on Do., 28 ;
5 Cruise. Dig. tit. 36, c. 7.

*Th e opinion of the court was delivered by
SERGEANT, J. On the question, what estate Thomas
Newark took, under the will of his father, there has been little or
no argument m this court ; but I think it clear, that according to
the current of decisions in this court and in England, he took an
estate tail. Most of the authorities applicable to this point, will
be found collected in the cases of ffaines v. Witmer, (2 Yeates,
400,) and Clark v. Baker, (3 Serg. & R. 470.)* The more

*See 9 Watts, 450 ; 9 Barr, 130 ; 11 Harris, 10 ; 6 Casey, 158, 161 ; 2
Wright, 166.



1835.] OF PENNSYLVANIA. 151

(Sharp v. Thompson.)

doubtful point has been, whether the common recovery was duly
suffered, so as to bar the issue in tail ; and the court below held
that it was not.

The act of assembly of the 27th of January, 1749-50, gave to
fines and common recoveries the same effect for the barring of
estates tail within this province, as they had by the laws of Eng-
land ; and many recoveries were suffered for this purpose, prior
to the passage of the act of the 16th of January, 1799, which
enables tenants in tail to convey by deed, as fully as they could
by common recovery or otherwise. In the construction of com-
mon recoveries, suffered after the act of 1749-50, the same rules
are applicable which governed them in England : and in that
country, they had long been treated as common assurances ; and
it has become a settled rule, that, like other conveyances, such
construction is to be made as will best support the agreement of
the parties, and carry into effect their intentions. The main con-
sideration is, whether there were parties competent to suffer the
recovery. If there were, every interpretation of their acts is to
be made with a view to sustain their conveyance, and not to per-
mit mistakes or blunders in the use of the machinery employed,
to overturn rights acquired and transmitted to purchasers for
valuable consideration. Before the statute de donis, a grant to
one and the heirs of his body was so interpreted by the courts,
as to enable the donee to transfer a fee simple, as soon as issue
was born. That statute forbade this construction, and created
tenancy in tail, with the design of preserving the estate in one
family, from generation to generation. Perpetuities of this kind
were found so inconvenient, and so hostile to the improvement of
the country, that the device of a common recovery was allowed,
in order to unfetter the estate ; and the tenant in tail has since
been treated as the potential owner of the fee simple, having an
inherent right to destroy the entail, with all remainders and
reversions, incapable of being restrained or prevented by any
clauses of limitation, condition, or prohibition, by custom, recog-
nizance, or otherwise ; and every support and encouragement
have been given to common recoveries, as legitimate modes of
conveyance of the fee simple. As early as Lord Coke's time, the
language of the courts is quite as strong as any that has been
since uttered. In Jennings' case, (10 Co. 44,) it is said, that
where tenant in tail is, in the recovery, tenant in fact, or tenant
in law, as vouchee, *the law, as incident to his estate, p*]^"]
has made the land and all remainders and reversions
subject to his pleasure, and he has right and power to bar them
all. In 3 Rep. 3, ( Winchester's case,) it is said, that common
recoveries, as much as any benign interpretation of the law will
permit, ought to be maintained, because they are the common



152 SUPREME COURT \I)ec. Term,

(Sharp v. Thompson.)

assurances of the land. In Lord CromwelVs case, (2 Rep. 74,)
it is said, that common recoveries are common assurances of the
land ; and such conveyances shall be expounded and be construed
according to common allowance, without prying into them with
eagle's eyes. After an interval of two centuries, Blackstone
says, that modern courts of justice consider them in no other
light than as the formal modes of conveyance, by which tenant in
tail is enabled to alien Ms lands. 2 Black. Com. 360. This
language has been often reiterated. 2 Black. Com. 358 ; 1 Wils.
73 ; 1 Burr. 115. I speak not now of a recovery suffered by a
tenant for life, which is forbidden by the law, and is always strictly
construed. It is far otherwise of a tenant in tail, conveying a
fee simple by it ; for he does no more than what he may right-
fully do, and what public policy has encouraged him to do. Let
us examine, then, whether the recovery in the present instance
cannot be sustained ; for if it can be so, by any reasonable inter-
pretation of the acts of the parties, it certainly ought to be in fa-
vor of persons holding under it as purchasers for valuable con-
sideration, by titles transmitted from hand to hand, accompanied
with possession for now about thirty -seven years.

Thomas Newark was tenant in tail of the premises under the
will of his father, and, as such, entitled to transfer a fee simple
by suffering a common recovery. He was about to leave this



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