1 U.S. 305 (1788)

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U.S. Supreme Court

KUNCKLE v. WYNICK, 1 U.S. 305 (1788)

1 U.S. 305 (Dall.)


Court of Common Pleas, Philadelphia County.

June Term, 1788

Covenant. The argument arose upon the following case, stated for the opinion of the Court: 'John Kunckle on the 7th day of Oct. 1784, conveyed to Nicholas Wynick, in fee simple, a lot of ground

Page 1 U.S. 305, 306

in the Northern Liberties of the city of Philadelphia, reserving a Rent- charge of 40 dollars per Ann. payable on the 1st day of October annually. Before any rent was due, Nicholas Wynick, on the 15th of July, 1785, assigned and conveyed all his interest in the Premisses to Henry Meyers. The Plaintiff accepted one years rent of the Assignee. The question is, whether he can recover in the present action, which is for one year's rent accruing subsequent to that paid?' The conveyance from Kunckle to Wynick contained the following clause: 'And the said Nicholas Wynick for himself, his heirs, executors and administrators, doth hereby covenant, promise, and agree, to and with the said John Kunckle, his heirs, and assigns, that he the said Nicholas Wynick, his heirs, or assigns, shall and will at his and their own expense, within one year from the date thereof, erect, build, and finish, on the hereby granted lot, one good substantial dwelling house, at least 16 feet square and two stories high, with a cellar under the same walled up with brick or stone and shall and will from time to time and at all times hereafter for ever, well and truly pay, or cause to be paid, unto the said John Kunckle, his heirs, or assigns, the aforesaid yearly rent or sum of 40 dollars, &c.' Rawle, for the Defendant, made two points: 1st, Whether the sentences in the clause above stated from the deed, could be so coupled and interwoven, as to create an express covenant, on the part of the Grantor, that his assigns should pay the rent-charge? and, 2ndly, Whether acceptance of rent from the Assignee, was not a bar of the Plaintiff's demand of the rent from the Assignor? 1. On the first point he endeavoured to construe the Covenant, so as to extend it to the Assigns of Wynick, only in the case of building the dwelling-house, and not in the case of paying the rent. But he did not seem to expect much success from this discrimination. 2. On the second point, he argued, that this was a rent issuing out of the land, which the Plaintiff had elected to pursue by his acceptance of rent from the Assignee; and that this acceptance was a bar to his demand against the Defendant. Cro. J. 522. 3 Rep. 22. 2 Bulstr. 152. He admitted, that 3 Lev. 233. Saund. 240. S. C. appeared to be strong against him; but, contended, that, in truth, they ought not to have any weight with the Court, since the present question was not immediately in agitation in those cases, and, consequently, what has not been expressly adjudged, cannot be set up as an authority. As 1 Bac. Abr. 536. is founded on 3 Lev. 233. it must necessarily follow the fate of its principal. With respect to Keb. 640, he presumed that the Reporter had been guilty of some mistake, and questioned whether his doctrine had been received even in England. But he urged that whatever might be the practice there, the laws and circumstances of Pennsylvania had rendered a different one necessary here; for the acts of Assembly altering the common law, carried with them many consequences, which were not expressly provided for in the acts themselves; as in the case of real estates made [1 U.S. 305, 307]

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