Williams's Appeal , 47 Pa. 283 ( 1864 )

The opinion of the court was delivered, by

Thompson, J.

Quain’s Appeal, 10 Harris 510, resulted rather as a consequence of the difficulty of enforcing the covenant with its incidents, against the executor for breaches of it after the death of the covenantor, than on account of its absence in fact or law. Indeed, it was expressly present, but it was believed to be incapable of full performance by an executor, being in its nature perpetual, while the office of executor was temporary, existing only so long as necessary to settle and distribute the estate of the testator. The covenant, in its terms, was as usual, and ran for ever.” The duties of the executor, at least as to the collection and liquidation of the debts, the distribution to heirs and devisees, is limited to a few years only. The office, for that is its true nature with us, generally ceases with these duties. It was thought, therefore, that to make the latter dependent on the former was to postpone the ultimate discharge of its duties indefinitely — a thing.the law would not allow. From the incongruity thus existing between conflicting principles, each equally claiming to be indispensable, it was thought, in view of the perpetual quality of the covenant, that the entire estate of the covenantor was not to be regarded as answerable for indefinitely recurring breaches of his covenant to pay ground-rent; that the personal covenant of the original grantee of the fee could not have been regarded as of value “ in a series of tenants lasting for everbut that the covenant running with the land, increased in value by anticipated improvements, was the security for the rent, and it was determined that the assets in the hands of the administrator were only applicable to the breaches of the ground-rent covenant which had accrued during the lifetime of the decedent — not to those recurring afterwards. This is the substance of all that -was decided in that case. The decision was made ten years ago, and, although it has been more than once assailed, it has been steadily adhered to, so far as it went. I do not moan now to enter the lists in defence anew of its principles; time and repeated recognition have given them sufficient stability, without further efforts of this kind. Were a discussion to eventuate in its overthrow, it is not within the range of ordinary foresight to tell what effect it might have in disturbing estates settled in accordance with the law as ruled by it. Stare decisis is generally a safe rule. A departure from it very often realizes that it is better “ to bear the ills we have, than fly to others that we know not of.” We are satisfied with the doctrine of the case, and do not intend to modify it. It preserves the congruity of the law, which the antagonist principle would not do.

Let it be recollected, however, that the question of parties to suits on ground-rent covenants for breaches, after the death of the covenantors, was neither discussed nor decided in Quain’s Appeal. ’The case is complete with denying the liability claimed in it. That was all that was involved. The money was in court, as in this case, and it was a question of distribution that was directly at issue. I do not think it a corollary of the principles announced in it, that the personal representatives of the covenantor may not be sued for breaches occurring after his death, as has been thought by some. I have no doubt that many cases have been so proceeded in in the various courts of this city. I find one reported in 3 Phila. Rep. 865 (Taylor et al. v. Painter, Administrator of Taylor), in which the District Court were unanimously of opinion that the action would lie against an administrator for such subsequent breaches, but that the judgment would be restricted to the land bound by the covenant. In the able opinion of Judge Stroud, in that case, it is said: “ the question is new, so far as our judicial decisions show. The records of our courts, we are quite sure, exhibit hundreds of instances in which judgments have been recovered, where the relation of the parties to each other, and to the subject-matter of the actions, correspond plainly and entirely with this case.” The local practice thus shown indicates the proper rule, and should not be readily departed from, especially as adherence seems so necessary to the quiet of community in regard to the security of their titles.

We have often said that it is the duty of the court so to fashion their remedies as to execute the law in the spirit of its requirements; it best subserves the ends of justice. We have many instances of this plasticity, but I will refer to but a few instances showing it. Before the passage of the Act of 24th February 1834, providing a remedy in the Orphans’ Court for the recovery of legacies charged on land, there is a striking instance of the exercise of this power. It was done in a suit against the devisee, restricting the judgment to the land charged. Brown et al. v. Furer, 4 S. & R. 213, recognised in Gauze v. Wiley, Id. 509; Moore v. Reese, 13 Id. 456; Martzell v. Stouffer, 3 Penna. Rep. 398, and Shelly v. Shelly, 8 W. & S. 153, are cases of the exercise of the same power under different and diverse circumstances. Many more instances of the successful application of analogous remedies and judgments in the courts, when necessary to meet the ends of justice, might be shown, but these will suffice for the present. It only requires the exertion of the same liberality in practice, to render the remedy under the ground-rent covenant entirely harmonious and practical, avoiding the difficulties noticed. This can be accomplished by allowing the covenant to be asserted against the personal representatives of the covenantor, but restricting the judgment to the land. In the ordinary course of things, there will always come a time when the realty will, at all events, be the only thing to respond for a breach of the covenant in failing to pay the rent. This is evidently contemplated in the use of the covenant for re-entry.

These views may seem outside of the very points presented in this case, but they are not so in fact; they answer the argumentum ah inconvenienti so earnestly pressed as a reason for overthrowing the decisions on the point in question. But if they be in any respect an expansion of the ground of contest, this will be justified, if they have the effect to allay anxiety in regard to titles passed under sales where executors or administrators may have been defendants in judgments for ground-rents accrued after the death of the covenantor. In this opinion all my brethren agree.

We think the auditor and court below decided rightly that the ground-rent landlord was not entitled to a distribution out of the moneys in the hands of the executors, on account of rent accrued after the death of the testator, the covenantor.

Appeal dismissed, and decree affirmed at the costs of appellant.

Woodward, C. J., was absent at Nisi Prius when this case was argued.