Hall v. Stewart , 12 Pa. 211 ( 1849 )

Coulter, J.

In England the action of account has been for a long time much disused'. The proceedings are dilatory and intricate, and resort is almost always had, where there is much perplexity or intricacy in the affairs, to the Court of Chancery, and where there is less entanglement, the action of assumpsit is sometimes adopted. At common law the action did not lie by one tenant in common against his fellow, although he took the whole of the profits to his own use, unless he was appointed bailiff to render an account, Co. Lit. 200 b. But by the statute of Anne, it can be maintained by one tenant in common against the other, as bailiff, for receiving more than comes to Ms just share and proportion. But it by no means follows that another action, suitable to the circumstances, will not lie between them. Certainly the action of covenant will lie, where they have entered into mutual stipulations and agreements. In Long v. Fitzsimmons, 1 W. & S. 530, it was ruled that account would lie upon the lease of a mill by parol, where the terms were that the tenant was to divide the profits, one-third to the landlord, and two-thirds to himself, he having sold the whole. The action could there be maintained by the landlord, because that was the only way in which the amount of the profits could be ascertained, and because a clear agreement to account was implied in the very terms of the lease. Even as between partners, where there has been a distinct promise to pay an ascertained sum, assumpsit will lie; a fortiori where there is a covenant under seal, an action will lie on the covenant. In this case the defendant was not the bailiff of anything belonging to the plaintiff, nor the receiver of goods or moneys which were the property of the plaintiff. ■ The land was leased by covenant under seal to the defendant, to farm it for Ms own use and benefit, in consideration whereof he covenanted to pay the plaintiff a reasonable rent. What is reasonable can be ascertained by testimony in this as in many other instances where the law is the same, upon a reasonable intendment, as upon a fixed sum or time. What the tenant received, therefore, he received in his own right, rendering by agreement an equivalent. It is not necessary to say that account would not lie in tMs case, although I confess my mind inclines strongly that way. But, the action of covenant will lie upon the mutual covenants of the parties, in this as in all other cases. Tenants in common have neither privity of title nor privity of interest; these are distinct and separate, and why may they not mutually contract in relation to their distinct interests ? I see no reason whatever why they should not. They have an unity of possession, but that is in no way affected by the covenant in the lease. The articles of lease which recite the title of Stewart and Hall, do not constitute them partners in said land, holding it with the incidents of a partnership. It was a single transaction, and the article declares that, upon Hall’s doing a certain thing mentioned, he shall have an equal interest in the land with Stewart, and they are to hold the land as equal partners. It is merely a clumsy use of the word partners, to show that they hold equal interests. They hold by separate titles, from different persons, and in neither of their conveyances is there any grant to them as partners.

But Hall did not do what he was bound to do, that is, pay the balance of purchase-money to Ewing and Irving, from whom he bought, and Stewart and Dawson paid that balance and took a conveyance from Irving and Ewing of the legal title subject to the equity of Hall, and afterwards, upon Hall’s paying them that balance, they conveyed to Hall according to their agreement with Ewing and Irving. The intent of this deed is so apparent, that he who runs may read; and the intent of the grantor is the ruling principle in the construction of deeds. Hall did not pay the balance of purchase-money due on his part, which alone was by the articles of agreement to make him an equal participator in interest with Stewart; and Stewart and Dawson did it for him, and several years after, when he paid this balance, they conveyed to him the land and title he had purchased from Irving and Ewing, expressly by the habendum limiting it to that. And in this action Hall sets up that deed as an estoppel to the rent and a conveyance. of the reversion; thus endeavouring to convert the kindness of his friend into a weapon to smite him.

But the law cannot be made the instrument of such contrivances. The consideration in the deed from Stewart and Dawson to Hall is $125, the same precisely which they paid to Ewing and Irving, as the balance of purchase-money due from Hall, on the payment of which they were to convey the legal title. And they did convey what Hall had purchased from Ewing and Irving, and no more; and then only was Hall entitled to be an equal participator in interest with Stewart, according to the terms of the lease. There is no more in the second point than in the first. The articles of lease remained in full force by the clear intent of the parties; they were neither weakened nor impaired by the deed.

Judgment affirmed.