Robb v. Beaver

The opinion of the Court was delivered by

Sergeant, J.

The opinion of the court below seems to us to be founded on the settled principles of our law with regard to the transfer and tenure of real estate and the power of the husband and wife by deed acknowledged to part with the wife’s estate. The execution of this deed was a transfer of the whole right, interest, and property of both husband and wife in the land. It passed to the purchaser a fee-simple which Lord Coke says is the fullest and most absolute estate which a person can have in lands. The annexing to it a condition of re-entry for non-payment of rent or failure to build, did not diminish the quantity of the estate; it only rendered it liable to be defeated in case the condition were broken and due advantage were taken of the forfeiture. There was no reversion or residue of estate remaining in the grantors. There was fealty due in consequence of the tenure of land in Pennsylvania not being subject to the operation of the statute Quia Emptores Terrarum. This was sufficient to make the rent technically a rent-service; but a rent in fee-simple, whether created at the time of the grant of the land and by the same deed, or by another conveyance, is a new estate distinct from the land, and a total change of the property. This was so held in Skerrett v. Burd, (1 Whart. 246), where a person seised of lands in fee-simple made his will devising those lands, and afterwards sold and conveyed a portion of those lands in fee-simple upon ground-rents; and it was held these ground-rents did not pass under the devise, but the conveyance on ground-rent was a revocation of the will pro tanto. The nature of such a transaction was fully examined in that case, and it was deemed to be a total alienation of the prior estate in the land, and the acquisition of a new estate in the rents.

The case is then the same as if the fee-simple in this rent had been conveyed by a third person to the husband and wife and their heirs. It would be in them an estate by entireties, and on the death of either, would go to the survivor in fee.

Judgment affirmed.