Lessee of Davidson v. Heydom

2 Yeates 459

• Court: Supreme Court of Pennsylvania
• Decided: June 15, 1798
• Status: Published

Opinion

Yeates J.

My brother Smith being a nominal trustee in the deed of assignment, though wholly uninterested, utterly refuses taking any part in the cause. I for my own part, feel no difficulty on either question. The words made use of in the original deed correctly describe an estate in joint-tenancy. The expressions in the latter part of the clause of tenendum, about which the difficulty is raised, exclude any doubt respecting the grammatical construction, to whose heirs the ultimate fee is to go. — We need not on this occasion recur to feudal principles for the solution of the question. In fact, the superadded words mean no more than what the law would imply without them. They may be justly styled legal tautology, and fairly fall within the known maxim, “ eivpressio eorum auce, tacite insunt nihil operatur. ”

The cases read by the defendant’s counsel relating to baron and feme holding an estate in joint-tenancy, are exceptions to the general rule, and only prove it. Between them there are no moieties, being considered one person in law. 3 Bac. 191. A husband joint-tenant may not charge the lands held with his wife, by recognizance, but others may. Oo. Lit. 184, ó. His feoffment may not be good, but it will scarcely be asserted, that one joint-tenant may not determine the estate by his deed.

. The deed to the trustees vests in them all the real and personal estate of Dougherty, to enable them to discharge his debts, in proportion to the just demands of his several creditors. It does the same thing, as would be effected with more expense by the bankrupt laws, and is more beneficial in another light to the creditors, as there is no allowance to be made to the debtor, in case of his paying 10s. or 15s. in the pound. I agree, that during the operation of the bankrupt acts, the creditors would not be bound by this assignment but it lies only with them to impeach it. It is premature to decide how matters would be, in case the debts were fully paid, and surplus examined. The assignment charges the legal estate and operates as a severance. The execution issued on the judgment has the same effect. If Dougherty had died immediately afterwards, a venditioni exponas might have been taken out and the lands sold forthwith, without any scire facias. On both points, therefore. 1 am of opinion with the plaintiff.

Verdict pro quer.