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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 6) online

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by Henry Penington against Thomas Coats to December term 1839
of this court.

*2781 *^ agreement, the following case was stated for the
* opinion of the court, to be considered as if the facts had
been found by the jury in the nature of a special verdict.

" Thomas Coats the elder, of the county of Philadelphia, now
deceased, was in his lifetime seised in fee of and in a certain lot or
piece of ground, situate on the south side of Noble street, at the
distance of seventy-three feet one inch eastward from the south-east
corner of said Noble street and Delaware Seventh street, in the
district of Spring Garden, in the county of Philadelphia, contain-



1840.] OF PENNSYLVANIA. 278

[Penington v. Coats.]

ing in front or breadth on the said Noble street, thirty-two feet one
inch and a-half; thence extending southward along the line of
ground now or late of Thomas Coats, sixty-eight feet ten inches
and three-fourths part of an inch ; thence eastward by ground of
James Laws, thirty-two feet; thence northward two feet; thence by
Jonathan P. Smith's ground, eastward seventeen feet ; thence north-
ward parallel with John street, thirty feet six inches ; thence west-
ward by ground of Biddle Reeves, seventeen feet; thence northward
by said ground of Biddle Reeves, forty feet ten inches and a-quarter
to the south side of Noble street ; thence westward along the said
Noble street, thirty-two feet one inch and a-half, to the place of
beginning; and being so seised, did, on the 23d day of September
1828, grant the same unto Joseph Rue, his heirs and assigns, for-
ever, subject to a yearly rent of $72.28, payable to the said grantor,
his heirs and assigns, forever. And the said grantor afterwards,
on the 14th day of April 1829, made his last will, whereby he
devised the said yearly rent, inter alia, to his wife, for life, and
after her decease, one undivided fourth part to Robert A. Parrish, in
trust for the testator's daughter, Marcy Field and her children ;
one other undivided fourth part to testator's son-in-law, Jedediah
Strong, and daughter, Sarah Strong, for their lives, and after their
decease, to their children ; one other undivided fourth part to
testator's son-in-law, Benjamin E. Carpenter, and daughter Deborah
P. Carpenter, for their lives, and afterwards to their children ; one
undivided eighth part unto the testator's son, Thomas Coats, his
heirs and assigns; and the remaining eighth to his said son Thomas,
and Mary his wife, during their lives, and after their death to their
children.

That the said Mary Coats, widow of the testator, released to the
said devisees in remainder, for the uses and purposes of said will,
all her estate for life, and all right and interest which she acquired
by the said will, whereby the said devisees next in remainder, are
entitled to the present possession of the ground-rent aforesaid,
reserved by the deed to the said Joseph Rue, if the same be not
merged by act of law. That the said Joseph Rue entered on the
said premises under the said conveyance to him, and erected a brick
house thereon, but had not completed the same when the premises
were seized and *sold by the sheriff of the city and county 1-1*970
Philadelphia, subject to the said ground rent, and bought "-
by the said Thomas, the son ; and the said Thomas, the son, sub-
scribed an agreement for the purchase thereof, with the sheriff, in
the following manner : " Thomas Coats per Thomas Coats, Jr."
That a deed was made by George Rees, sheriff, for the said pre-
mises, to Thomas Coats, Jr., bearing date April 10th 1830, and
acknowledged on the 12th of the same month in open court,
according to law ; a copy of which is herewith annexed, marked



SUPREME COURT [Dec. Term,

[Penington v. Coats.]

(A). That the said Thomas Coats, the elder, died on the 19th of
March, A. D. 1830, at his domicile in the city of Philadelphia,
leaving issue the said Thomas Coats, Jr., Sarah Strong, wife of
Jedediah Strong, Deborah P. Carpenter, wife of Benjamin E. Car-
panter, all of whom are now living, and Marcy Field, wife of Joseph
Field, which said Marcy hath since died, leaving four children to
survive her, namely, Thomas C. Field, Mary Field, John Field,
and Joseph Field, now living. That the said Thomas Coats, Jr.,
on or about the 27th day of May, A. D. 1836, entered into and has
continued to occupy the aforesaid premises ever since.

That on the 27th day of May A. D. 1836, the said Thomas Coats,
Jr., made and delivered the indenture granting the aforesaid
premises unto Henry Penington, Esq., in trust, a copy whereof is
annexed, marked (B). That the yearly value of the use and occupa-
tion of the said premises by the said Thomas Coats, Jr., is two
hundred and twenty-five dollars ; and that the said Thomas hath
occupied the same from the date of the said deed of trust, viz., May
27th 1836, which, until the 27th of November last, is three years
and six months, amounting to seven hundred and eighty-seven
dollars and fifty cents.

Now if the court shall be of opinion that the title to the whole
of the said premises, free, clear and discharged from the said ground-
rent of $72.28, was vested in the children of the said Thomas the
father at the time of the execution of the said deed of trust to the
plaintiff, then judgment shall be rendered in favor of the said
plaintiff, trustee aforesaid, for the sum of five hundred and ninety
dollars and sixty-three cents, the same being the amount of the
yearly value of the premises from the time the plaintiff's title
accrued until the 27th of November last, less one-fourth belonging
to the said defendant ; but if the court shall be of opinion that the
title to the said premises was vested in the said children at the date
of the said last mentioned deed, subject to the said ground-rent of
72.28 per annum, then judgment shall be rendered in favor of
said plaintiff, trustee as aforesaid, for the sum of four hundred dol-
lars and eighty-nine cents, the whole yearly value, less the arrears
of the said ground-rent three years and six -months, and less one-
fourth belonging to the said defendant."

The entry of the sheriff's deed referred to in the case stated, was
as follows.

*2801 *^ n ^ e twe lfth day f J une A - D - 1830, George Rees,
J Esquire, high sheriff of the city and county of Philadelphia,
acknowledged in open District Court for said city and county a
deed poll, under his hand and seal, bearing date the tenth day of
April A. D. 1830, for conveying unto Thomas Coats, Jr., his heirs
and assigns, in consideration of the sum of eleven hundred and
twenty-five dollars, to wit : A certain lot or piece of ground, situate



1840.] OF PENNSYLVANIA. 280

[Penington v. Coats.]

on the south side of Noble street, at the distance of seventy-three
feet one inch eastward from the southeast corner of said Noble
street and Delaware Seventh street, in the district of Spring Gar-
den, in the county of Philadelphia, containing in front or breadth
on the said Noble street thirty-two feet one inch and a half, thence
extending southward along the line of ground now or late of
Thomas Coats sixty-eight feet ten inches and three-fourth parts of
an inch ; thence eastward by ground of James Laws thirty-two feet ;
thence northward two feet ; thence by Jonathan P. Smith's ground
eastward seventeen feet ; thence northward parallel with John street
thirty feet six inches ; thence westward by ground of Biddle Reeves
seventeen feet ; thence northward by said ground of Biddle Reeves
forty feet ten inches and a quarter to the south side of Noble street;
thence westward along the said Noble street thirty-two feet one inch
and a half to the place of beginning; subject to the payment of a
yearly rent- charge of seventy-two dollars twenty-eight cents, in
half-yearly payments, on the first days of July and January in
every year, forever, without any deduction for taxes, to Thomas
Coats, his heirs and assigns, forever ; being the same lot of ground
which Thomas Coats and Mary his wife, by indenture bearing date
the twenty-third day of September A. D. 1828, granted to Joseph
Rue, in fee simple, on which is erected a two-story brick house,
nineteen feet front by thirty-one feet in depth, with a piazza, a two-
story brick kitchen and bath house : on the remaining part of the
lot the cellar for a house is dug and walled, and the second floor of
joists is laid ; and the said sheriff, by a certain writ of venditioni
exponas, tested at Philadelphia the twelfth day of September A. D.
1829, did, on Wednesday the twenty-fifth day of November last past,
(1829) at seven o'clock in the evening, at the Merchant's Coffee
House, in the city of Philadelphia, expose the premises above
described, inter alia, to sale by public vendue or outcry, when
Thomas Coats, Jr., of the Northern Liberties, of the city of Phila-
delphia, bought the same for the price or sum of eleven hundred and
twenty-five dollars, he being the highest and best bidder, and that the
best price bidden for the same : to have and to hold all and singu-
lar the hereditaments and premises hereby granted and described,
or mentioned and intended so to be, with the appurtenances, unto
the said Thomas Coats, Jr., his heirs and assigns, to and for the only
proper use and behoof of the said Thomas Coats, his heirs and
assigns, forever ; under the subject nevertheless to the payment of
the above-mentioned yearly rent *charge of seventy-two r*oci
dollars twenty-eight cents, according to the form, force and *-
effect of the laws and usages of this commonwealth, in such case
made and provided."

The conveyance from Thomas Coats, Junr. to Henry Penington
referred to in the case stated, recited that, " whereas George Rees,



281 SUPREME COURT [Dee. Term,

[Penington v. Coats.]

Esquire, high sheriff of the city and county of Philadelphia, by
deed poll, bearing date the tenth day of April, one thousand eight
hundred and thirty, granted and conveyed unto the said Thomas
Coats, by the name and addition of Thomas Coats, Junior, and to
his heirs and assigns, all that certain two story brick messuage or
tenement, piazza and kitchen, and lot or piece of ground, situate
on the south side of Noble street, at the distance of seventy-three
feet one inch eastward from the south-east corner of said Noble
street and Delaware Seventh street, in the district of Spring Gar-
den, in the county of Philadelphia, containing in front or breadth
on the said Noble street thirty-two feet one inch and a half; thence
extending southward along the line of ground now or late of
Thomas Coats sixty-eight feet ten inches and three fourth parts of
an inch ; thence eastward by ground of James Laws thirty-two
feet ; thence northward two feet ; thence by Johnathan P. Smith's
ground eastward seventeen feet; thence northward parallel with
John street thirty feet six inches ; thence westward by ground of
Biddle Reeves seventeen feet ; thence northward by said ground
of Biddle Reeves forty feet ten inches and a quarter to the south
side of Noble street ; thence westward along the said Noble street
thirty- two feet one inch and a half to the place of beginning:
together with the appurtenances, to hold to him the said Thomas
Coats, his heirs and assigns, forever; under and subject to the pay-
ment of a yearly ground-rent of seventy-two dollars twenty-eight
cents, in half-yearly payments^ on the first day of July and Janu-
ary in every year, forever, without any deduction for taxes, to
Thomas Coats, the father of the above-named Thomas Coats, party
hereto, his heirs and assigns, forever, as in and by the said recited
deed poll, entered among the records of the District Court for the
city and county of Philadelphia, in Book E. page 469, &c., relation
being thereto had will more fully and at large appear. And
whereas the said premises were purchased by the said Thomas
Coats, party thereto, for his father, Thomas Coats, and the consid-
eration money therefor paid by the said Thomas Coats, the father,
and the above recited deed poll erroneously made by the said
George Rees, sheriff aforesaid, to the said Thomas Coats, party
hereto, in place of the said Thomas Coats, the father ; by reason
whereof the said Thomas Coats, party hereto, became the trustee
of his father the said Thomas Coats, and the said yearly ground-
rent of seventy- two dollars twenty-eight cents thereby became
merged in the equitable interest of the said Thomas Coats, the
father, in said premises. And whereas the said Thomas Coats, the
*282T f atner 5 being so seised of *or entitled to the said premises,
' departed this life intestate with respect to the same, leaving
a widow named Mary, and issue four children, to wit, the said
Thomas Coats, party hereto, and Sarah Strong, wife of Jedediah



1840.] OF PENNSYLVANIA. 282

[Penington v. Coats.]

Strong, Marcy Field, wife of Joseph Field, and Deborah P. Car-
penter, wife of Benjamin E. Carpenter, who thereupon became
entitled to the said premises, according to law. And whereas the
said Thomas Coats, party hereto, Jedediah Strong and Benjamin
E. Carpenter, did, on the first day of July, one thousand eight
hundred and thirty-three, refor all matters in variance and contro-
versy between them in any way connected with or growing out of
the concerns of the estate of the said Thomas Coats, deceased, to
the final decision and award of Joseph R. Ingersoll, George M.
Dallas and John Bouvier, Esquires, who, on the twenty-fifth day
of August, one thousand eight hundred and thirty-four, did award
that the said Thomas Coats, party hereto, should convey the pre-
mises above described clear of all incumbrances, unto the said
Henry Penington, his heirs and assigns, in trust, for the purposes
hereinafter mentioned."

The deed then conveyed the said messuage and lot of ground to
Henry Penington, his heirs and assigns, in trust to pay the net
rents. &c., to the said Thomas Coats, Sarah Strong. Marcy Field
and Deborah Carpenter, in equal shares, and to sell and convey
the premises to such persons as they should direct and approve,
&c.

Mr. Penington cited Helmbold v. Man, 4 Whart. 421.
Mr. Markland, contra.

ROGERS, J., delivered the opinion of the court.

A merger is a common-law doctrine, and exists where there is
a union of the legal estate in one person, in the same right and
at the same time. Where such legal ownership of the term
and inheritance meets, the term which was before personal pro-
perty, falls into the inheritance and ceases to exist. But, in no
instance, can the legal estate merge in the equitable owner-
ship. In the sixth chapter of Mr. Preston's Treatise on Con-
veyancing, which contains an enumeration of the circumstances,
which must concur in order to accomplish the operation of the
law of merger, it is said, the several estates must be held in the
same legal right : and on page 566, " the exception to merger
arising from the circumstances, that the same person takes in dif-
ferent rights, must also be attended by the circumstance, that both
these rights are recognised by law and considered to be distinct.
And as a legal estate cannot merge in an equitable one, it is matter
of consideration, whether the terra be not legal, and the inheritance
equitable and e converso." Here the ground-rent was a legal
estate, and recognised as such at law ; but the character of r*ooo
*estate, in which it is said to be merged, is of a different



283 SUPREME COURT [Dec. Term,

[Penington . Coate.]

description ; being nothing more than an inceptive title, an equit-
able interest, which, on payment of the purchase-money, would
enable the vendor to demand a legal title by a deed properly exe-
cuted and acknowledged by the sheriff. Scott v. Greenough, 7
S. & R. 200 ; Stoever v. Rice, 3 Whart. 24 ; Morrison v. Wurtz,

7 Watts 437. These principles have a direct application to the
point raised in the case stated, and show, that at law the ground-
rent is not merged. At the time of the death of the testator, the
estate being separate and distinct, the acquisition of the inceptive
equitable title could not operate by merger, as a revocation, pro
tanto, of the bequests specified in the will. The interest of the
legatees having become vested, nothing which has occurred since,
can, by any possibility, alter the dispositions in the will, even on
the supposition (which is contrary to the fact), that the legal estate
had been subsequently acquired. And if this be so at law. much
less will it be considered a merger in equity ; for equity does not
favor mergers ; and in law, mergers are said to be odious. It is
generally, though not universally true, that merger depends on
intention ; and it is only, in those cases, where it is perfectly indif-
ferent to the party in whom the interests have united, whether the
charge or term should not subsist, that in equity the term is
merged. 3 Prest. on Con. 43 ; Forbes v. Moffit, 18 Ves. 394 ;
Dougherty v. Jacob, 5 Watts 458. The presumption undoubtedly
is against any intention on the part of the testator, by the purchase,
to defeat the bequests in his will ; nor can it be said to be indif-
ferent even to him, that this effect which certainly never entered
into his mind, should be produced. Equity will not permit the
rights of creditors, legatees, .devisees, husbands or wives, to be
defeated by mere act of law, without any act done by them ; and
in a case stated in Salkeld, it is said to be a reason by Lord Chief
Justice Holt, that there should not be an extinguishment, because
a third person was concerned, who might be prejudiced ; which
could not be by act of law. Prest. on Con. 292, and to the same
effect, Forbes v. Moffit, 19 Ves. 394 ; Moore v. Harrisburg Bank,

8 Watts 148.

In Morrison v. Wurtz it is said, that a sheriff's sale is attended
by the ordinary incidents of a sale by an individual : and if this
had been a private sale, by articles of agreement, no money paid,
nor possession taken, a legal title to be made, and the contract to
be consummated at a time fixed by the parties, and in the inter-
mediate time the testator had died, it would be clear, that the case
would not fall within the operation of the law of merger. It would
not merge at the time of the agreement, and there can be no inter-
mediate time ; for until the time agreed upon, the ground landlord
would be entitled to his rent, which is inconsistent with the notion



1840.J OF PENNSYLVANIA. 283

[Penington v. Coats.]

that the rent is extinguished : and until the sheriff's deed in the
case, in law, he is the owner of the rent.

*It is not intended to say, that although an estate may *ri)OA
not merge at law, that in all cases it will be left separate
and distinct in equity. Cases may possibly occur, where this may
not be the case. For where an owner has an absolute interest in
the estate and in a charge or term, the latter may be annihilated,
and particularly in Pennsylvania, where equitable estates have
many of the incidents, as to remedies, of legal estates. As for
example, where a lessee purchases the fee, but neglects to take a
conveyance of the legal title. Under such circumstances, perhaps
the term would be extinguished, as the estates would be inconsistent
with each other, and to keep them separate, would be to no purpose.
Then, it may be, the maxim would apply, nemo potest esse dominus
et tenens. But be this as it may, we are all of the opinion, that
neither at law, nor equity, has the ground-rent merged so as to
defeat the rights of the legatees.

Judgment for $400 and 89 cents.

Cited by counsel. 2 Barr 169 ; 7 Id. 344.
Followed, 1 W. & S. 487.



[PHILADELPHIA, FEBRUARY 20, 1841.]

Baker against Haines.

IN ERROR.

1. The doctrine in this state is, that mere unaided comparison of hands is
not in general admissible. But after evidence has been given in support of a
writing, it may be corroborated by comparing the writing in question with
a writing concerning which there is no doubt.

2. To authorize the admission of the writing offered as a test or standard,
nothing short of evidence by a person who saw the party write the paper, or
of an admission by such party of its being genuine, or evidence of equal
authority, is sufficient.

ERROR to the District Court for the City and County of Phila-
delphia.

This was an action on the case, brought by John Haines against
*Joseph Baker, to recover damages for an alleged libel in
the form of a letter addressed to Dr. George Uhler, as
follows :

" Dr. G. Uhler, Dear Sir.

If you go to John Haines's cellar, you will find twenty pigs
lead belonging to you. One horse brought him a load of dirt, but



285 SUPREME COURT [Dec. Term,

[Baker v. Haines.]

it took two to haul the lead to his cellar ; and then call on Robert
Morrell, living right opposite, in one of Branch Green's houses; he
will tell you, as he does other people, how much lead belonging to
you he carried to his cellar. Send some person there that he don't
know, and see if he don't sell him a ton of lead belonging to you.

April 20th. A Friend."

Indorsed " Dr. G. Uhler, West Kens'g., Pa."

The declaration averred that the defendant composed the alleged
libel and sent it to Dr. Uhler, &c. ; "meaning thereby that he
the said plaintiff, feloniously did steal, take and carry away to his
cellar, lead of great value, of the goods and chattels of the said
Dr. George Uhler, and imputing to the said plaintiff the charge
of larceny."

On the trial, before Stroud, J., on the 22d of January 1840, the
plaintiff's counsel called Dr. Uhler, who testified as follows:

u I know the parties ; I know this paper, (looking at the alleged
libel). I received it a day or two after its date : it came to me
through the post ; I have seen a handwriting said to be defend-
ant's which looks like it ; I never saw him write, nor heard him
acknowledge his writing ; I am not acquainted with his hand-
writing."

Upon being cross-examined he said "I kept it in my possession
a day and a night, and then I gave it to the plaintiff. I have seen
it since then once or twice ; the first time was a month or so after ;
and then six months or a year before I saw it again ; I don't know
if I saw it again after then till to-day.

I made no mark on it at any time ; I know it to be the same
because I know its general appearance, the letters, and every thing
connected with it, and every word of it."

The plaintiff then called James Hunt, who testified as follows :

" I know the defendant's signature. This (looking at a paper
handed him) don't look like his signature ; I believe this to be his
signature (looking at a paper marked No. 1, and dated Jan. 2d
1837) ; and this is his, I have no doubt, (looking at a paper No. 2,
dated Jan. 2d 1836) ; and this is his, I have no doubt, (looking at
a paper No. 2, dated Sept. 6th 1826) ; and this," (looking at No.
3, dated March 13th 1826).

Being cross-examined, he said " I have seen the defendant
write often ; not for two years ; I have seen him sign his name
repeatedly. I don't think I ever saw him write, except his signa-
* 9 861 * ure ' as ^ wnat *I nave seen him write is confined to his
* signature. There is generally a manifest difference be-
tween a common hand and a signature ; there is a considerable
difference between the characters of writing and the signatures.
The writing in these papers, (looking at the papers marked No. 1,
2, 3 and 4) is his. I have seen writing in checks acknowledged to



1840.] OF PENNSYLVANIA. 286

[Baker v. Haines.]

be his ; I am acquainted with his handwriting ; I have no doubt
that it, (the alleged libel), is in Mr. Baker's handwriting , I never
saw it before."

Upon being cross-examined, he said, " I have no knowledge of
his (the defendant's) handwriting except what I have stated. I never
saw him write anything but his name ; I have no recollection of
having heard him acknowledge that any paper was his handwrit-
ing; I have seen him fill up checks and notes."

The plaintiff's counsel then offered to read the alleged libel in
evidence ; to which the defendant's counsel objected, upon the
ground that the witness had not testified to a sufficient knowledge
of the defendant's handwriting to permit the paper to be read in
evidence ; which objection was overruled by the judge ; and the
defendant excepted. The paper was then read in evidence.

Other witnesses were called by the plaintiff's counsel in respect
to the circumstances upon which the supposed libel was founded.
One of these witnesses was asked on cross-examination, by the
defendant's counsel

" Do you know what is the defendant's character for disputing



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 32 of 75)