Gambar halaman
PDF
ePub

(Philadelphia Library Company v. Ingham.)

Mr. W. Rawle, Jr., for the plaintiffs in error:

1. The plea to the jurisdiction of the president judge ought not to have been overruled. The intention of the act of 23d of March, 1813, was to prevent the opinions and prejudices of counsel interfering with the administration of justice. It is not necessary that the parties should be the same on the record. If the person for whom the judge was counsel, was a party in interest, it is sufficient. In this case, there is no doubt that the defendant in error was the real party in interest, and that "the subject matter" was the same. The act of the 14th April, 1834, section 37, chapter 4, is decisive upon the point.

2. The judge erred in supposing that any taxes were due from the Library Company. By the act of 1799, relating to "County rates and levies," ground rents are treated as a species of property, distinct from the land out of which they issue; and so they have always been considered. By that act they were first made taxable; and the obvious intention was to create a new source of revenue; not to divide the burthen between the owner of the ground rent and the owner of the land. No tax can be demanded, unless all the steps mentioned in the act of 1799 have been previously taken; and in this case none of these requisites appear to have been attended to in respect to the ground rent. The valuation by the assessors is material. Respublica v. Deaves, (3 Yeates, 465.) If the result of this case should deprive the county of the tax on these ground rents, for the time being, we are not to blame, having always been ready to pay the tax properly assessed on the ground rent.

3. If the ground rent had been duly assessed, the defendants in error had no right to deduct the amount of the tax from the arrears of rent. His claim to do so rests upon two acts of assembly, which relate to matter of a different description, (Acts of 6th April, 1802, s. 8, and 3d April, 1804, s. 6.) Both of these acts refer to tenants for years, and have no application to a rent, payable out of the fee, like the present.

4. The standard by which the value of the ground rent was estimated, was uncertain and inequitable. That the opinions of witnesses are no evidence, except in certain cases of science and trade, is well settled. 1 Phillip's Evid. 226. There are two standards, either of which might have been taken.-1. The value of money, or 2d. That adopted by the Special Court. Whatever may be the value of the increased ground rent in 1861, it will be then properly assessed, and the company, or the owner of it, will be bound to pay a tax in proportion to that value. But it would be obviously unjust to take that future value as the basis of present assessment, The decree of the Special Court was an express adjudication upon the same subject matter, and ought to have been followed.

5. The doctrine that the owner of a ground rent is bound to pay

(Philadelphia Library Company v. Ingham.)

the taxes upon the land, out of which the rent issues, is clearly untenable. A ground rent is a rent reserved upon a grant in fee. It differs materially from a rent reserved upon a lease for years, which is always for a less term than the lessor has in the premises. 3 Cruise Dig. Tit. 32, s. 1. The grantor has an estate in fee upon a condition subsequent. Litt. Sec. 325. Co. Litt. 201. The rent has all the qualities of real estate. Hurst v. Lithgow, (2 Yeates, 24.) Wilder v. Foster, (2 Penn. Rep. 26.) If this doctrine were established, the consequences would be ruinous to the owners of this species of property. In fact, the point has been decided by this court, (Franciscus v. Reigart, Harrisburgh, 1835, MS.)

Mr. W. M. Meredith, for the defendant in error. This court will look to the real points in dispute, and not reverse for incidental expressions of the judge below.

1. A judge is not to be excluded from sitting, because he has fixed views upon any principle of law. The question is, whether he had been concerned for one of the parties. Now, Mr. Ingham was not a party to the appeal. The parties really and nominally were the County Commissioners and the Library Company. Besides, this was a question addressed to the discretion of the judge, and not examinable in a Court of Error. Ellmaker v. Buckley, (16 S. & R. 72.)

2, 3. A ground rent in Pennsylvania, means a rent of inheritance. In this case, the rent was reserved for years, though the land was conveyed in fee. It was therefore a chattel interest for the first hundred years, though the company claim an interest in the land beyond the present rent. The act of 1799, does not say that the rent must be assessed separately. In the act of 1724, "lands and tenements" were spoken of generally, as subjects of taxation. (Hall & Sellers' Laws, 132.) In England, the original subsidies were on the rental. (1 Com. Dig. tit. Sewers, F. 5 & E. 2.) The visible owner of property must be assessed. Sheaffer v. M'Kabe, (2 Watts, 422.) Here the tax was laid upon the whole-rent and land-and Mr. Ingham, having paid more than his proportion, ought to be allowed to deduct the excess. Such is the rule in England, in the case of the land tax. (Platt on Covenants, 211. Comyn on Land. & Ten. 187.) The acts of assembly expressly authorizes a tenant to deduct the tax from his rent. (Act of 1799, s. 25, and Act of 1804.) In 4 Term Rep. 511, it was held that to an avowry for rent, the tenant might plead payment of a ground rent to the original landlord.

4. The real question here is, what is the true standard of the value of the ground rent. The judge of the Common Pleas said, that the jury were to consider what it would fairly sell for in the market for ready money. Now this is almost literally according to the

(Philadelphia Library Company v. Ingham.)

act of 1799, (s. 8.) There cannot be two standards of value, each absolutely certain, as was asserted on the other side. The value of money varies with the varying situation of the country and other circumstances. There is no instance he assessment of ground rents at six per cent. The decree of 1829, cannot control subsequent assessments. The law requires assessments to be made triennially. If the par value of the ground rent is the true standard, why did Judge King go beyond the sixteen years and two-thirds purchase? The true measure is the price the company would be willing now to take, looking at the certain future increase.

5. This is not the case of an ordinary ground rent, if it can be called by that name. The Library Company have an interest in the land beyond the rent. It is more like a rent for a long term of years. If rent be reserved to a man and his heirs upon a lease for years, the executor cannot take. Gilbert on Rents, 66. The case of Darragh v. Wilson, (Cro. Eliz. 645,) shows that on the death of Mr. Logan this rent went to his Executors.

This was a rent-seck, not a rent-charge. Gilbert on Rents, 14, 15. Co. Litt. 143, s. 216, 217. 3 Cruise Dig. 188. The Stat. 4 Geo. 2, c. 38, s. 5, which extends the remedy by distress to rents-seck, is not in force in this state. [KENNEDY, J. That is not so certain. We had a case recently at Harrisburg in which it was supposed to be in force.]

THE COURT declined hearing Mr. Sergeant, (with whom was Mr. Chauncey,) in reply.

The opinion of the court was delivered by

GIBSON, C. J.-The only principle that could produce an effect on the event, has already been determined in Franciscus v. Reigart; where it was held that the conditional owner of the fee cannot defalcate taxes assessed on the land. What is there in this case besides? It is not pretended that there was a separate assessment on the ground rent; and if there had been, what concern would the occupant have had with it? The act of the 3d of April, 1804, subjects the tenant to taxes assessed on the land, and empowers him to recover it from his landlord by action or defalcation; but the tax on ground rent is chargeable on a distinct species of property. Besides, though the owner of it is usually called the ground landlord, the expression is evidently an inaccurate one. Subinfeudation no more exists here than it does in England, since the statute of quia emptores; and there is nothing like tenure, where the rent is not incident to the reversion. Now, such a rent as the present, is charged on the land, the instant the ground landlord parts with the fee, leaving in him but a condition of re-entry; and even the reservation of that may be omitted. And it may, by force of

(Philadelphia Library Company v. Ingham.)

the deed, be charged on land of which the ground landlord never was the owner. The clause in the act above quoted, has respect to taxes, for which the tenant is liable by his position as the occupant, but for wha he is not liable by any agreement with his landlord. His case would call for a liberal construction, if he were exposed to payment of the ground rent taxes; but by no statute whatever is his person or chattels chargeable with any burthen, that is not assessed specifically on the land. The statute has expressly subjected ground rents to taxation, eo nomine; but it has provided no remedy to enforce payment by distress on the land from which it issues; and the tax is consequently to be collected as a tax on land was previously to be collected-by recourse to the person or chattels of the owner. It is undoubtedly true, that he, like the owner of land when the tenant was irresponsible, may be beyond the reach of the collector. Taking for granted, however, that this species of property, unlike a chattel interest which attends the person of the owner, is to be taxed, but in the county where the land lies, the right of taxing it not being determinable by the domicil, yet, as the statute which makes the tenant liable for taxes assessed on the land, has not made him liable for taxes on quit rents issuing out of the land, we cannot supply what we might suppose to be the effect of an oversight. Nor do we conceive that the defect, if there be one, is of great magnitude, as it is the practice in the country to assess a full tax on the land, without regard to incumbrances, and to overlook the quit rents altogether; in consequence of which, an inconvenience from want of means within, in the county, has not been so striking as to challenge legislative inquiry. But if that were otherwise, to provide such means would exceed our power.

The proposition also asserted here, that separate taxes, on separate subjects of taxation, separately owned by distinct persons, may be indiscriminately assessed on the same subject matter, leaving the owners to settle their respective proportions of what would thus be made a common burthen, is still more extravagant. To admit that a tax on the quit rent may be assessed conjointly with that on the land, would deprive the rent-holder of his separate right of appeal, which, by a particular legislative provision, lies in this case to the Common Pleas. There was in fact and in law, therefore, no assessment on the quit rent, and no duty owing for it; but if that were otherwise, it would not be material to inquire whether there was error in the method adopted to ascertain the measure of its relative proportion; for, whether it were assessed jointly or separately, the occupant could not, by voluntary payment, make himself a creditor of the person properly chargeable with it.

But the exception to the jurisdiction is not sustained. We have already intimated that an objection to competency, under the act for the establishment of Special Courts, must be addressed to the

(Hogeland's Appeal.)

discretion of the judge himself; and this is conformably to the principle of the common law, which exempts a judge from challenge. Nor can there be danger in leaving the matter to him. A sense of duty in keeping his administration not only pure but unsuspected; and the reprobation that would ensue an evident desire to favour a party by retaining the cause, must always incline him to surrender it where he may do so by the most comprehensive construction. Into the supposed relations of the parties, therefore, we are forbidden to inquire; and we are bound to suppose that the legal discretion of the judge, in holding himself exempt from the bias incident to the imputed causes of it, has been soundly exercised.

Judgment reversed and a venire de novo awarded.

[Philadelphia, January 14, 1836.]

HOGELAND'S APPEAL.

A testator directed his executor to convert his whole estate into money, and declared that he forgave certain debts due to him by his sons A. and B., and his sons-in-law, C. and D. He ordered the residue to be equally divided into six parts; and bequeathed one-sixth to a trustee, with directions to invest the same and pay the interest to E. (one of his daughters, the wife of F.) during her life, and the principal at her death to her children; He then added, "It is further my will, that whatever debts may be due to me and owing from any of my sons or sons-in-law, (except those herein forgiven,) I order to be deducted from the share of such son or son-in-law, whether given direct or in trust; and the neat proceeds only after such deduction be appropriated to the use of such branch of my family." At the date of the will, F., the son-in-law, was indebted by bond and mortgage to the testator; after whose death, the land of F. bound by the mortgage, was sold by the sheriff, upon an execution at the suit of a judgment creditor: Held that the mortgage given by F. to the testator, was to be deducted from his wife's share; and consequently was not a lien upon the land.

APPEAL by Derrick Hogeland from a decree of the Court of Common Pleas of the county of Montgomery, in the matter of the distribution of the money arising from the sale of certain real estate, by virtue of a writ of venditioni exponas, issued in a suit of James Comly, administrator, &c. of Deborah Ayres, deceased, against William Ayres, devisee of Samuel Ayres, deceased.

George Shelmire, by his will dated the 15th day of January, 1828, after bequeathing to his wife certain articles of personal property, and directing that she should have the use of a house and lot of ground during her life, did "give and forgive" to his sons William, Jacob, and George, and his sons-in-law, John Stephens, and Joel K. Mann, who had intermarried with his daughters Ann and

« SebelumnyaLanjutkan »