Scott v. Lunt's Administrator
32 U.S. 596

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U.S. Supreme Court

Scott v. Lunt's Administrator, 32 U.S. 7 Pet. 596 596 (1833)

Scott v. Lunt's Administrator

32 U.S. (7 Pet.) 596

Syllabus

Action of covenant brought by the plaintiff in error to recover the amount of certain rents alleged to have been due and in arrear from the defendant since the death of his intestate under an indenture, by which a certain annual rent was reserved out of the property conveyed by the indenture, and which the grantee covenanted to pay, a clause of reentry for nonpayment of the rent being contained in the deed. By the court:

"It is firmly established that on a covenant to pay rent, reserved by the deed granting real estate subject to the rent, the personal representatives of the covenantor are liable for the nonpayment of the rent, after an assignment, although there may also be a good remedy against the assignee. The laws of Virginia have not, in this respect, narrowed down the responsibility existing by the common law in England."

The assignee of a fee farm rent, being an estate of inheritance, is, upon the principles of the common law, entitled to sue therefor in his own name. It is an exception from the general rule that choses in action cannot be transferred, and stands upon the ground of being, not a mere personal debt, but a perdurable inheritance.

The common law of England, and all the statutes of Parliament made in aid of the common law prior to the fourth year of the reign of King James the First, which are of a general nature and not local to the Kingdom, were expressly adopted by the Virginia statute of 1776, and the subsequent revisions of its code have confirmed the general doctrine on this particular subject.

The instructions given to the jury not conforming to the issue made up by the pleadings, a venire de novo was awarded.

This was an action of covenant instituted in the Circuit Court for the County of Alexandria by the plaintiff, against the defendant to recover sundry annual rents alleged to be due from the defendant's testator to the plaintiff, under a deed executed by General George Washington and wife, of the one part, and the defendant's intestate, on the other part, by which a lot of ground in the City of Alexandria was conveyed to Ezra Lunt, his heirs and assigns, subject to the payment of an annual rent of $73, payable to General George Washington, his heirs, executors and assigns, on 8

Page 32 U. S. 597

August in each year. The deed was made upon 8 August, 1799, and contained the following covenants:

"And the said Ezra Lunt, his heirs and assigns, does hereby grant unto General George Washington, his heirs and assigns, the said annual rent of $73, issuing out of the said hereby demised premises, and the said Ezra Lunt, his heirs and assigns, do hereby covenant, promise, and grant to and with the said General George Washington, his heirs and assigns, that he, the said Ezra Lunt, his heirs and assigns, will, yearly and every year forever, well and truly pay the aforesaid sum of $73 unto the said General George Washington, his heirs and assigns, on the day and at the time appointed for payment as aforesaid, and also that it shall and may be lawful for the said General George Washington, his heirs and assigns, at any and at all times after the said rent shall become due (if the same be not paid when demanded), to enter upon the said hereby-granted piece of land and distress and sale make of the goods and chattels which may be thereupon found to pay and satisfy such rent or rents, or part of a rent, as may remain due and in arrear. And it is further agreed, covenanted, conditioned, and provided by the said Ezra Lunt, his heirs and assigns, to and with the said General George Washington, his heirs and assigns that if the said yearly rent of $73 or any part thereof be behind or unpaid for the space of thirty days next after the same became due and payable, and sufficient goods and chattels of the said Ezra Lunt, his heirs and assigns, shall not be found upon the said hereby-granted premises to pay and satisfy the same, that then it shall and may be lawful for the said General George Washington, his heirs and assigns, in and upon the said hereby-granted piece of land and premises to reenter, and the same to hold again, repossess and enjoy, as if this present indenture had never been made, anything herein contained to the contrary thereof in any wise notwithstanding."

The deed also contained a covenant of general warranty.

On 28 August, 1804, the executors of General Washington, by a deed of indenture executed on that day, sold and conveyed to Henry Smith Turner, his executors, administrators, and assigns the annual rent of $73, issuing out of and charged upon the piece of ground conveyed

Page 32 U. S. 598

to Ezra Lunt, "to have and to hold the said annual rent of $73, unto the said Henry Smith Turner, his heirs and assigns," &c. This deed recited the conveyance to Ezra Lunt at large.

On 25 February, 1808, Henry Smith Turner sold and conveyed the said ground rent of $73 to the plaintiff in error. The conveyance, after reciting the deed from General Washington to Ezra Lunt and that the said rent and the powers of distress and reentry contained in the same, were, by the executors of General Washington, transferred to him, the said Henry Smith Turner, his heirs and assigns, by the deed of August 5, 1804, proceeded as follows:

"Now this indenture witnesseth that the said Henry Smith Turner and Catharine his wife, for and in consideration of $600, to him, the said Henry S. Turner, in hand paid by the said Richard Marshall Scott, at or before the sealing and delivery of these presents, the receipt whereof he, the said Henry Smith Turner, doth hereby acknowledge, and thereof and of every part and parcel thereof doth acquit, release, and discharge him, the said Richard Marshall Scott, his heirs, executors, and administrators, by these presents, have given, granted, bargained, sold, aliened, assigned, transferred, set over, and confirmed, and by these presents, do give, grant, bargain, sell, alien, assign, transfer, set over, and confirm unto him, the said Richard Marshall Scott, his heirs and assigns forever, that rent of $73, issuing out of that piece of ground, lying upon the north side of Prince Street and to the westward of Pitt Street in the Town of Alexandria, granted by the said George Washington to the said Ezra Lunt, and by his executors conveyed and transferred unto him, the said Henry Smith Turner, and the powers of distress and reentry, and all deeds and instruments of writing which relate to the reservation and transfer of the said rent, and every covenant, clause and stipulation contained in them, or any of them, to have and to hold all and singular the said premises, with their appurtenances, unto him, the said Richard Marshall Scott, his heirs and assigns, to the only proper use and behoof of him, the said Richard Marshall Scott, his heirs and assigns forever. "

Page 32 U. S. 599

To the declaration filed upon the covenant contained in the lease for the payment of these rates, the defendant pleaded

1st. That he had not broken the covenants in the declaration mentioned, and put himself on the country, and the said plaintiff likewise. The defendant afterwards filed a general demurrer to the declaration, which was overruled by the court, and the defendant then filed two additional pleas, viz.,

2d. That he had fully administered, &c.

3d. That before the days in the declaration mentioned for the payment of said rent, that is to say, on the ___ day of _____, in the year _____, the said plaintiff, under and by virtue of the said condition of reentry in the said deed contained, did enter on the said premises thereby demised, for nonpayment of certain rent then in arrear and unpaid, and held and occupied the same as vested in him by the said entry as his absolute estate, &c. To these pleas there was a general replication and issues. After these issues were joined, the plea fully administered was withdrawn, and the cause went before the jury upon the first and second pleas as above stated.

The plaintiff gave in evidence the deed or lease from General Washington and Martha his wife, to Ezra Lunt, and the conveyances of the executors of General Washington, and Henry Smith Turner.

The defendant then gave evidence to prove that, upon the settlement of the administration account by the defendant upon the estate of his testator, there was a balance in the hands of the administrator of $149, which he, the defendant, under the order of the orphans' court, distributed among the next of kin of the deceased in the year 1812, no demand having been made upon him as administrator for said rent previously to this suit. The defendant then gave in evidence to the jury a deed from the original lessee, Ezra Lunt and his wife, to James Boyd, and a deed from James Boyd to Jonathan Schofield, by which deeds, it was admitted that the premises upon which the said rent was charged had been duly conveyed to him, Jonathan Schofield.

The defendant then offered Jonathan Schofield as a

Page 32 U. S. 600

witness in the said cause, to prove that the said plaintiff had made a reentry upon the premises in question. The said Schofield proved that he had held the premises in question from the time he obtained a deed from them -- that is to say, from 4 November, 1817, to the latter end of the year 1820; that towards the close of 1820, the plaintiff pressed him for the rents then due upon the premises, and threatened to reenter upon them if the rent was not paid; that in the year 1819, the said plaintiff and himself had a conversation in relation to the said rent, in which the plaintiff threatened to reenter upon the premises for the nonpayment, and that the said Schofield had, on his part, in the said conversation, declared his total inability to make payment, and that, at the plaintiff's request, he agreed, that the plaintiff should take possession of the premises and do what he pleased in consequence of the nonpayment of the said rent; that in the end of the year 1820, he received a letter from the plaintiff, on the same subject, and that the letter produced by the latter was written by him in answer thereto; that after this, he understood, that the said plaintiff had reentered on and taken upon himself the management of the said premises, and he supposed that he meant no longer to look to him for the rents, and in fact that he had reentered upon the premises; that from the year 1819 to the present time, he had had nothing to do with the premises, nor had any claim been made against him for the rent. It was admitted that during all this time -- that is to say from January, 1821, to the present time -- the said Jonathan Schofield was wholly insolvent.

The defendant then examined a witness, one Barton Lynch, who gave evidence to prove that about the beginning of the year 1821, the plaintiff engaged him to labor for him at $73 a year, and the plaintiff informed him that he was entitled to a ground rent upon the premises in question of $73; that if he would collect this rent, he might do so, and apply it to his (the plaintiff's) credit on account of his labor, and that he might, so far as the plaintiff had any concern in the premises, do whatever he pleased toward renting and making the most of the property; that he did not mean to reenter upon the property; that he immediately turned his attention, and found two families living upon

Page 32 U. S. 601

it; that under an authority from the plaintiff, he entered on and repaired the premises to a pretty considerable extent, and rented the property out, from time to time, for nearly three years, and received for the rents about $140, which was paid over to the plaintiff, or rather accounted for by him to the plaintiff in the settlement of his account for his labor done for the plaintiff.

This evidence being given to the jury with a view of showing that a reentry had been made by the plaintiff upon the premises in question, the counsel for the plaintiff prayed the court to instruct the jury that the said evidence was not competent to prove that the said plaintiff had reentered upon the said premises so as to vest in him a title to the said premises and to bar him from the claim which he has here made, and that it was not even competent for the jury to infer from the said evidence that such reentry had been made, which instruction the court refused to give, being of opinion that the said evidence was competent to be left to the jury for its consideration upon the question whether a reentry had been made by the plaintiff according to the terms of the clause in the aforesaid original deed from General Washington's executors to the said Ezra Lunt.

The court having refused to instruct the jury as aforesaid, the counsel for the plaintiff prayed the court to instruct the jury that the time at which the reentry ought to be made depended upon the lease given in evidence by the plaintiff as aforesaid, and could not be varied by the evidence given as aforesaid by the defendant, and that if it found that a reentry had been made, that it ought to be such as would conform to the deed, and that a mere occupation of the premises by a landlord or his agent, or the receipt of rents of the premises did not in themselves amount to a reentry, which instruction the court refused to give, being of opinion that it was for the said Schofield to waive any of the formalities required by law for his benefit.

The defendant then prayed the court to instruct the jury that if the jury should be satisfied by the said evidence that the said Richard M. Scott did enter and take possession of the premises under and by virtue of the clause of reentry in the deed from General Washington's executors to the testator of

Page 32 U. S. 602

the defendant, it was competent for the jury to infer from the evidence aforesaid that the said Jonathan Schofield assented to the said reentry, and that if they believed that he did so assent, and he yet continued to assent to the said reentry, and that the plaintiff had never since offered to reinstate the said Schofield in the possession of the said premises, that the said plaintiff was bound by the said entry, and could not recover against the same the rent which became due subsequently thereto, which instruction the court gave as prayed.

The counsel for the plaintiff excepted to the refusal of the court to give the instruction prayed by the plaintiff, and to the instruction given by the court on the prayer of the defendant. Judgment having been rendered by the court in favor of the defendant, this writ of error was prosecuted.

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