Pickering v. Pickering

15 N.H. 281

• Court: Superior Court of New Hampshire
• Decided: July 15, 1844
• Status: Published

Opinion

Parker, C. J.

This is a legacy or provision for the plaintiff, charged upon the income of the land, and through that upon the land itself. The income of the land into whatever hands the land may fall is chargeable with the maintenance of the plaintiff, upon the contingency specified in the will. 4 Mass. R. 634, Farwell vs. Jacobs ; 2 Pick. R. 619, Baker vs. Dodge; 1 Paige's Ch. R. 32, Birdsall vs. Hewlett; 7 Paige's R. 431, Harris vs. Fly.

The will, and the acceptance of its provisions, bound the income of the land, and an implied promise arose on the part of the devisees, when they took possession, to appropriate the income to the support of the daughters, or any of them, while the devisees held the land. The ease is within the principles laid down in 6 N. H. Rep. 123, Pickering vs. Pickering; and 2 N. H. Rep. 439, Piper vs. Piper. See, also, 3 Mason's R. 208, Gardner vs. Gardner ; 2 Ld. Raym. 934, Ewer vs. Jones.

The cases cited do not appear to have turned upon any provincial statute. An action at law was maintained, there being a duty, and the promise being implied from the existence of the duty. 1 JT. H. Rep. 232, Erickson vs. Willard.

If more than one of the daughters should be in need, and the income was not sufficient for all, (a case the testator doubtless never contemplated,) each must have been entitled to a share, by operation of law, upon the devise.

"When the devisees all entered, the duty was incumbent on all; they took jointly, and the promise may well be regarded as joint; 10 Johns. 30, Van Orden vs. Van Orden & a., where a joint promise was inferred, there having been part payment. The charge Is upon the income and profits of the whole estate.

Such a charge was held in New-York not to be a personal duty charging the executors. 3 Johns. 192, Livingston vs. Exrs. of Livingston ; 7 Johns. 99, Beecker vs. Beecker. It was held there that an action would not lie on an implied promise; but that if there be an express promise, or evidence from which an express promise may be inferred as part payment, an action will lie. 10 Johns. R. 30, Van Orden vs. Van Orden; 3 Cowen 133, Kelsey vs. Deyo; 6 Cowen 333, Tole & Ux. vs. Hardy. That being the case, an action must then be sustained against the executors of the devisee, where there is evidence of an express promise.

And so where it is held that there is an implied promise by the devisee upon his entry upon the land devised, an action must lie against his executors on that promise for any breach in the time of the devisee; and perhaps for any subsequent breach, if the legacy was given in such a manner that it could be considered debibum m presentí.

If the legacy was a sum in gross, payable at once, the devisee or devisees would be liable for its payment immediately, and might, if more than one, be jointly charged. If the legacy was payable absolutely, at a future day, there seems to be no objection to holding that the devisee or devisees, by their acceptance and entry, undertake to pay it when it becomes due.

But divers questions arise here. If the legacy is in gross, and the devisee may he charged in assumpsit upon an implied promise, and a cause of action will exist against his representatives in case of Ms decease, will his conveyance of the land without payment •cause a promise to arise on the part of his grantee to make payment ? and will the devisee be discharged from his promise on such conveyance ? If he conveys to several at different times, will there be a promise by each of the grantees, if any promise arises in such case, and will that promise be joint ?

Upon principle, these questions may be readily answered. If the charge be of a gross sum payable presently, there being a debt due from the devisee on acceptance, his conveyance would neither discharge the land nor discharge himself from the implied promise to pay the debt. He could not by his own act relieve himself from the liability he had assumed. Having assumed the payment of the legacy thus charged, it would stand like his debt secured by a mortgage, and there would he no personal promise implied on the part of Ms grantee. By making the purchase, he would take the land charged with the duty. But there would be nothing in the nature of the transaction to show that he assumed a debt from the payment of which his grantor was not discharged. The transaction would no more imply a promise by the grantee to pay the legacy, than a purchase of property under a mortgage would imply a personal promise to pay the debt charged on it.

There seems to be no difference in the principle, if the debt be payable at a future day. Where the charge depends upon a contingency, and especially where, as in this case, it is to be made effectual by an appropriation of the income at a future period, the case presents itself under a somewhat different aspect. The implied promise which arises in such case can only extend to the appropriation of the income, in case the devisee holds the estate at the time when the contingency happens, and so long as he holds it. The law cannot raise a promise by implication beyond the time that he will have the ability to perform it, and the estate which he took was assignable.

Under such circumstances there would seem to be no insuperable objection, in practice, to holding that, on every transfer of the whole estate, the grantee who takes the estate charged with a duty which may arise upon a contingency, or with a continuing duty which constitutes no debt, or a duty which arises from time to time, makes an implied promise to perform the duty, or pay the charge which accrues in his time; that for all breaches which accrue while he holds the estate, he will be personally responsible. The consequence would be that his personal representatives must answer, in case of his decease, for such breaches; and, if he aliened the estate, the purchaser would take it charged with all sums in arrear, but would not be personally responsible except for causes of action and neglects which accrued after he became the purchaser. Such a case could perhaps be settled in favor of the maintenance of the action, without violating any of the rules which govern actions at the common law. It would be the simple case of an implied promise to perform a duty, arising from taking a conveyance of land charged with such duty, on the same principle that the original devisee of land charged with a legacy, is held, by implication, to promise on the acceptance of the devise.

But a farther question arises, whether this principle can be applied to cases where the devisee or devisees sell the estate in parcels to different individuals, and where the sales have been made at different times. The whole estate being charged with the entire incumbrance, any one might, in such case, perform the -duty, or make the payment out of the income of Ms part, if sufficient, and have Ms remedy for contribution. TMs seems to be a necessary result. The charge being in the nature of a mortgage, the principle which governs in the case of a mortgage would be applicable in this, for neither could exonerate Ms share by paying & pro rata proportion. TMs serves to show that, upon ordinary principles, a several promise by each to pay or perform Ms share, cannot be implied in such case. If such was the nature of the implied promise, there could be no contribution, as each would be liable for Ms share alone. There seems to be as little ground for holding that, upon such sale of a part, the purchaser of part can bo held by any implication, arising from the purchase, to have made a several promise to pay or perform the entire duty or charge upon the whole land; because the entire charge is not upon Ms purchase merely, but upon the whole land. The greatest extent of a several implied promise in this case would be a promise to appropriate the income of his part.

The remaining question is, whether a joint assumpsit may bo implied under such circumstances. Lord Chief Justice Iloli, in Ewer vs. Jones, 2 Ld. Raym. 927, cited for the plaintiff, is reported to have said that a devisee may maintain an action at common law against the terre-teno/nt for a legacy derived out of land. The facts upon which the opinion was founded do not appear, and the language may import no more than an opinion that the first terre-ienani under the will is liable. But there is a direct authority in favor of the position; Swasey vs. Little, 7 Pick. 296. There, lands were devised to five cMldren, and the estates of each charged with the payment of one fifth of an annuity. The annuity was paid for several years. Parcels of the fifth, devised to one of the sons, were sold by order of court for the payment of debts. The sale was subject to the annuity. Creditors of the son severally levied executions on other parts of that fifth, the appraisers in estimating their value taking into consideration the annuity, and the amount in arrear. The administrator of the annuitant brought assumpsit for the arrears against all the purchasers a,nd creditors, and it was held that the action might be maintained, and that the defendants were properly joined.

It is objected by the defendant’s counsel, that there is a difference between that case and this, because there the sales and levies were made subject to the incumbrance, but the difference does not seem to be one of principle. The transfers in this case were necessarily subject to the charges, although it was not stated, and the grantees of the land are chargeable with constructive notice of it, as they derive their title under the will creating it. 7 Paige 421, Harris vs. Fly. In the case of Swasey vs. Little it is said, “ The general doctrine is, that where lands are charged, the tenants of the lands are jointly liable. If there is a covenant running with the land, the hems and devisees of the covenantor are jointly liable to an action for a breach of the covenant, committed in their own time. Chit. Pl. 39, 40. So if any one acknowledges a recognizance, or suffers judgment to go against him, and afterwards dies, scire facias shall go against his heir and the tenant of the lands ; and, in such case, the heir is only liable, as he is tenant of the land descended to him from his ancestor. 2 Wms. Saund. 7, note 4; Panton vs. Hall, 2 Salk. 598 ; Proctor vs. Johnson, Ib. 600. And all the tenants of the land must be joined in the suit. And the reason is, because all the lands are jointly bound by the judgment or recognizance. The same reason applies to the case under considerartion. All the lands in the possession of the defendants were charged with the payment of the annuity bequeathed to the plaintiff’s intestate. And although the defendants are purchasers of portions of the land charged, in severalty, yet all these purchases were made subject to a joint charge of the whole land ; and as the whole land is equally charged, so all the tenants are equally liable, according to their respective portions; and if one should eventually be compelled to pay the whole, he will be entitled to contribution from the other tenants.” 7 Pick. R. 330.

But neither of the classes of cases there cited appear to bear very directly upon the question. In the first class, that of covenants running with the land, the action is founded upon the express obligation of the covenantor, by which he bound himself and his hems, &c. No question arises whether there is a joint implied promise. The heirs and devisees are chargeable on the express covenant of the ancestor or testator, upon a principle similar to that by which several executors or administrators, having assets, are jointly liable upon the bond or promise of the testator-or intestate. They do not promise, upon taking the land, but become liable to perform a promise previously made by one whom they represent thus far. But in Swasey vs. Little, the subsequent purchasers of part of the land are not held upon the ground that they are bound by the implied promise of the devisee who took under the will, but by their own implied joint promise. The action is upon their own promise.

The other class of cases relates to lands bound by recognizance, where the creditor by scire facias is attempting to charge the lands themselves, and not to raise an assumpsit of terrer-tenants. The scire facias is only to have execution of the ancestor’s lands in the hands of the heir and tenants. 2 Saund. 7, note 4.

The opinion in Swasey vs. Little, notwithstanding the authorities cited do not necessarily sustain it, is entitled to very great consideration, from the known character and standing of the tribunal in which the decision was made; but it is evidently a case where the court must have acted upon the principle that for every right there is a remedy; and the legislature, not having provided appropriate chancery powers to enforce the charge upon the land in favor of the plaintiff', the court seem to have been compelled to give a very large construction to a statute providing that any person, having a legacy given in any last will, may sue for and recover the same at common law. In ordinary cases, the provisions of this statute would certainly be satisfied by the maintenance of a suit against the executor, or, if the legacy were charged upon land, by one against the devisee or his personal representatives, with a scire facias against the terre-tenanis holding the land under the devisee, to have execution of the land in default of payment, according to the authorities. 2 Saund. 7, note 4.

There are, certainly, very formidable objections to the implication of a joint promise charging the terre-tenants upon a joint personal promise in such case. If a joint assumpsit can arise in any case by reason of a sale of a part of the lands charged with a legacy, the promise must change at every conveyance of any part. As often as any tenant of a portion sells the whole, or a portion of Ms estate, a new party is introduced, as making a joint promisor with those who are already tenants, to perform a matter for wMch the prior owners were held to have made a joint promise, and so on until the end of the chapter. And those already in, are to he held impliedly as concurring in the promise thusarismg, although they have no agency in the sale or any knowledge of it. The new'purchaser comes into a kind of partnersMp in the old promise, but, unlike other cases of partnersHp, he "comes m without consent; and perhaps no one goes out. It certainly must form a Mnd of shifting assumpsit of a very novel character. Does the promise arise upon the purchase and conveyance of the estate, or is it implied when the money becomes payable ? Take the case of an annuity. In the course of the year during wMch it is accrumg, there are several conveyances of parts of the estate. Who are to be charged on tMs shifting joint promise ? Those who held at the beginning of the year, or those who owned at the close ? If either alone, what is to be done with those who purchased and sold again within the year ? When they purchased, their lands were chargeable with the debt. If there is any promise arising from the charge, they came into the partnersHp, and it would seem must have made some kind of a promise during the time when the debt was accruing, but will have exonerated themselves from all liability, by them sale before it became payable. There seems to be no way in wMch to get them all in as joint promisors. A case where the support of the legatee is charged upon the land, and there is a continuing breach, must entitle the party to a new action on every sale, and of course subject those who continue to hold, to an action on a new jomt promise every time any of the cotenants pleases to find a purchaser of a fraction, however small.

It is not necessary to pursue this matter. There must certainly be sufficient H the considerations already indicated to show that such a shifting joint promise cannot be supported, so long as any other remedy can be found.

From a remark of Mr. Justice Story, in Sands vs. Champlin, 1 Story’s C. C. R. 386, he evidently understands that when legacies are charged on lands in this mode, there is no personal charge upon the heirs of the devisee, to whom the lands may descend, and of course there could be none upon his grantees.

The charge being upon the income and the land, and the duty arising from accepting and holding the land, and receiving the income, the promise cannot be understood to extend beyond the period during which the parties held. When they sold, and others entered into the land and the reception of the profits, the charge remained upon the land, and the duty of appropriating the income, when necessary, devolved upon the grantees.

If the devisees had all sold to a single individual, perhaps his implied promise might bo substituted. If they had all sold at one time to several grantees, the reason before stated would show that they might all be held on a joint promise. But Gilbert, one of the devisees, conveyed his part by will, and the interest having thus become severed, a joint action can no longer be maintained upon general principles. When his devisees came in, they assumed a duty, and might perhaps be held to have made a several promise, if that was necessary in order to secure the rights of those in whoso favor the charge existed. But if several actions were sustained, there must be great difficulty in adjusting through the verdicts of different juries the different portions which each was bound to pay.

It seems perfectly clear, from this examination, that there is no adequate remedy at law in this case, and an action at law is not necessary to the security of the plaintiff and the other legatees. Those who have title to the lands hold them in trust, to appropriate the income, or so much of it as may be necessary, to the support of the plaintiff. It is settled that an executor holds in trust to pay legacies. 1 Story’s Eq. 555, § 593 ; 2 Madd. Ch. 1; Jeremy’s Eq. Jur. 194. The same principle applies where one holds lands upon which, or upon the income of which a legacy is charged. 1 Vernon 411, Clowdsley vs. Pelham ; 3 Mason’s R. 178, Gardner vs. Gardner; 1 Story’s R. 383, Sands vs. Champlin; 4 Met. R. 528, Taft vs. Morse; 1 Merivale’s R. 140, Newman vs. Kent; 2 Shower’s R. 38. Sitting as a court of equity, we can enforce the trust and apportion the amount.

As the maintenance is charged upon the income, the duty would be performed by appropriating so much of it as is necessary at a reasonable place. If either of those who hold the land had offered to do this, it would have been sufficient. If move than one had made the offer, and was ready to furnish the support, there might be serious difficulties in adjusting the controversy in the ordinary course of proceedings at law.

The offer shown to have been made by James Pickering, would have been sufficient if he had been liable at that time; but he had conveyed his interest long before, and no duty then rested on Mm.

The offer of Winthrop Pickering, if it was an offer to receive the plaintiff as a visitor, was not sufficient.

Verdict set aside.