Prout v. Roby - 82 U.S. 471 (1872)
U.S. Supreme Court
Prout v. Roby, 82 U.S. 15 Wall. 471 471 (1872)
Prout v. Roby
82 U.S. (15 Wall.) 471
1. No particular phraseology is necessary to create a separate estate for a feme covert. In whatever language expressed, if there is a clear intent of the parties to create the estate, it is created.
2. A lease of land for a term of years on a ground rent, fixed, to P. "in trust for J. M. (a married woman), her heirs and assigns," with a covenant on the part of the lessor that on payment of a principal sum named, he will, at any time, convey the land in fee to "the said J. M.,
her heirs and assigns," cuts off all the rights of the husband in the fee. The covenant to convey passes to the heir of the woman.
3. In such a case, where the woman dies intestate, leaving no personal representative, and the lessor during the continuance of the lease, without any proper reentry or right, takes possession and receives the rents of the land, the heir of the woman on a bill filed by her heir for an account and a payment of the ground rents out of the other rents and an application of the surplus to the payment of the principal on payment of which a conveyance in fee was to be had, and for a conveyance accordingly, may proceed against the lessor or his heir alone. A representative of the woman as a defendant is, in such a case, no necessary party.
4. Where on a bill by one asserting himself to be the heir-at-law of another, the answer denies the heirship, and on an issue directed, the heirship is found, and the court decrees for the complainant accordingly, no objection being made to anything that occurred at the trial and no application to set aside the verdict, this Court will not, in the absence of the evidence given before the jury, go behind the decree of the court.
5. At the common law, where a right of reentry is claimed on the ground of forfeiture for the nonpayment of rent, there must be proof of a demand of the precise sum due, at a convenient time before sunset upon the day when the rent is due, upon the land, at the most notorious place of it, though there be no person on the land to pay.
Appeal from the Supreme Court of the District of Columbia, in which court John Roby, asserting himself to be, grandson and heir-at-law of a certain Jane Mallion, filed, A.D. 1865, a bill against Robert Prout (the now appellant), in order to have an account taken of rents received by him, the said Robert, from a lot on Capitol Hill Washington, D.C., leased A.D. 1820, on a small ground rent, by William Prout, ancestor of him, the said Robert, to one Porter "in trust for the said Jane Mallion, her heirs and assigns," with a right on the part of her and them to have, at any time, a conveyance in fee simple on payment of the principal of the rent, and on which lot (the said Jane dying A.D. 1852 intestate and leaving no personal representative) the said Robert Prout, without any such demand on the premises, of arrears of rent, as gate him a right of reentry, had assumed to reenter as for a common law forfeiture; and the bill praying, moreover, in the event of certain findings, a conveyance in fee simple to him, the said John Roby, complainant.