Sur rule to take off nonsuit. Ejectment, by Mary Cresswell et al., children of Howell Jeffreys and Ann his wife, against Emanuel H. Grumbling et al., for a tract of land in Indiana County. On the trial, before BLAIR, P. J., the following facts appeared: It was agreed that Robert Evans, through whom each party claimed, had a good and valid title on September 27, 1855. The plaintiff offered in evidence the following articles of agreement, duly recorded in Indiana County: Articles of agreement made and concluded the 27th day of September, 1855, by and between Robert Evans, of Green Township, Indiana County, Pa., and Howell H. Jeffreys and Ann his wife, of Johnstown, Cambria County, of the second part: Witnesseth that the said Robert Evans, of the first part, agrees to give his farm unto the said Howell H. Jeffreys and Ann his wife, to farm during his natural lifetime for the consideration of keeping him comfortable in food and clothing and necessaries. Said Robert Evans further agrees that after his decease said Howell H. Jeffreys and Ann his wife shall have his farm for their use during their lifetime, and after their decease to go to their heirs after them forever, provided said Ann Jeffreys will leave any children, otherwise the farm is to go to the nearest relatives of said Robert Evans. Said Robert Evans reserves to himself the right to sell a portion of the land into town lots for building a town on condition that the said Howell H. Jeffreys and Ann his wife to have the one-half of the price of the same. Said Howell H. Jeffreys and Ann his wife agree to fulfil the foregoing conditions, and also agree not to transfer or sell their right of aforementioned farm to any person whomsoever; for be it understood that the said Robert Evans grants no power to sell or transfer the privilege of these presents to any other than the within-named Howell H. Jeffreys and Ann his wife for the performance of these presents. In witness of these articles each party signs for themselves the day and year written. DANIEL WILLIAMS. Robert Evans died about twenty years ago. Ann Jeffreys has also been dead for a number of years; she left surviving her four children, the plaintiffs in the present suit. Subsequently to the death of his wife Howell H. Jeffreys conveyed the above mentioned land in fee to Grumbling et al., defendants in this action. Turner v. Fowler, 10 Watts, 328. Harry White (W. M. Stewart, H. W. Weir, and W. M. Stewart, Jr., with him), contra. The plaintiffs cannot bring ejectment now, for, by their own showing, they have not a present right of possession. The clause restraining alienation was annexed to the "privilege" first granted, namely, the gift "to farm of the farm to Howell and Ann Jeffreys during his (the grantor's) natural lifetime," and therefore said clause has no effect. But the restraint of alienation is void anyhow, because this agreement gave to Howell and Ann Jeffreys a fee. The rule in Shelley's Case applies; there was a gift of an estate of freehold, and in the same gift a limitation to the heirs of the first takers in fee. The word "heirs" is a word of limitation, and Brown v. Mattocks, 13 WEEKLY NOTES, 366. June 30, 1884. THE COURT. Robert Evans was the undisputed owner of the land in controversy, and on the 27th of September, 1855, entered into the written contract, offered and received in evidence, with Howell H. Jeffreys and Ann his wife. Ann was the only daughter and child of Robert Evans, and the plaintiffs in this case are her children. The defendants claim the premises through conveyances of her husband executed after her death, and after the death of Robert Evans, her father. Howell H. Jeffreys, her husband, and father of her children, is still alive. The plaintiffs' right to recover is based upon the position that, under the contract above mentioned, a life The children then brought this action, alleging estate only was secured to Jeffreys and his wife, and that under the above agreement Howell and that this estate was forfeited when the surviving Ann Jeffreys took only a life estate, and the re- husband undertook to sell and did sell and constraint of alienation was a condition, and the vey the land in dispute in violation of the proconveyance by Howell Jeffreys worked a forfeit-vision of the contract prohibiting alienation. It is plain, however, from the reading of this paper that the prohibitory clause cannot have the effect attributed to it. What Robert Evans desired was to have a home with his daughter and son-inlaw, and he therefore bargained with them that they should keep him comfortably during his life. It occurred to him that they might sell the land in his lifetime, or such interest in it as they might have, and thus turn him over to the keeping of strangers. He provided or guarded himself against accident of this kind, because he wanted the personal service and attention of those with whom he was bargaining so long as he lived. This was the whole purpose of the provision, and it cannot, therefore, be rationally and fairly construed into an absolute prohibition against alienation after his death. This is sufficient to dispose of the case. If we should concede (which we do not) that Jeffreys and his wife took only a life estate, the fact that the husband is still living would prevent a recovery. So long as he lives his children can have no legal claim to the possession under the contract. When a tenant for life conveys a greater estate than he holds the conveyance does not work a forfeiture, but is effectual to pass such estate as he has. We understand this to have been the law ever since McKee v. Pfout (3 Dallas, 486). And now, June 30, 1884, the motion to take off the compulsory nonsuit is overruled. Opinion by BLAIR, P. J. C. P. No. 4. City v. Wood. Municipal contracts June 3, 1884. Ordinance of May 25, Thomas W. Barlow, for the rule. The depositions conclusively show that the condition of this bond has been strictly and fully complied with. The bond simply provided security in the event of the obligor declining to do the work, to prevent idle and irresponsible bidding and to avoid the expense of re-advertising. (Ordinance of May 25, 1860, sec. 1, Digest of City Laws, p. 81, pl. 6.) Here the obligor not only did not decline, but actually performed the work and delivered the boilers to the city. This released the surety and also the obligor. This must not be confounded with the ordinance of July 5th, section 1st (Digest of City Laws, p. 82, pl. 11), providing for the furnishing of a bond in one-half the amount of the contract price conditioned for the faithful performance of the contract. No bond of this character has been proceeded upon. E. S. Miller, contra. G. R. V. D. Vendor and vendee— Covenants implied by words "grant, bargain, and sell' Under this covenant the estate of a vendor of real estate is liable for an unpaid gas bill which the vendee has been obliged to pay in order to obtain the use of gas in the premises. Sur exceptions to adjudication. Horatio C. Wood, the decedent, in his life1860, § 1—Bonds to prevent irresponsible bid-time, from the year 1870 to 1876, owned a lot ding-Liability thereon. Rule to open judgment and let defendant into a defence. The depositions showed that the Guardians of the Poor had advertised for bids to furnish two new boilers to the Philadelphia Almshouse, that John Wood, Jr., the defendant, filed his bid to furnish said boilers together with a bond prepared in accordance with the provisions of the ordinance of Councils of May 25, 1860, section 1, that Wood's bid was the lowest, and he was awarded the contract, that he furnished two boilers to the Almshouse, which were not accepted, that the city entered up the bond, the condition of which was as follows:: "Now the condition of this obligation is such, that if the bid of the said obligor is the lowest, and he shall decline to perform said work, that he shall pay to the city the difference between the amount of his bid and the bid of them or him who shall actually perform said work, then this obligation to be void, otherwise to be and remain in full force and virtue." of ground at Twenty-second and Washington Avenue, with the buildings thereon, and steamengines and machinery therein. Gas from the Philadelphia Gas Works had, at the time of the sale from Wood, hereafter mentioned, been introduced and conveyed through the same by pipes which passed with the realty. On January 10, 1871, Wood signed an agreement with the Philadelphia Gas Works, of which the following is a copy : "I hereby consent that Messrs. Brinton & Johnson, tenants, southeast corner Twenty-second and Washington Avenue, may have the gas introduced into said premises, of which I am the owner; and, in default of payment for gas consumed on said premises, I also consent that the flow of gas shall be stopped until the bill be paid. And when the said tenant removes I will give notice at the gas office. The entire service pipe, from the street main to the meter, to be the exclusive property of the trustees of the gas works. "HORATIO C. WOOD, "Owner." "Nor could the ordinary terms of a deed containing the usual words above quoted, be properly held to amount to a covenant that no such arrears existed." In pursuance thereof gas was introduced into "It never has been considered that the fact said premises and consumed by said tenants, and that the tenant has left his gas bill unpaid made on May 15, 1873, $61.12 was due the gas any lien or incumbrance as to the landlord's works, who, according to the terms of said real estate, which, as between him and his agreement, and because of said arrearages, grantee, he was bound to remove." stopped the flow of gas to said premises until said money was paid. By deed dated January 7, 1876, and duly recorded, Wood did "grant, bargain and sell" to George T. Lewis, in fee, said premises (in which were gas-pipes annexed), with improvements thereon erected, "together with all ... rights. . . privileges. and appurtenances ... thereunto any wise appertaining," and thereby covenanted, as to the subject of the grant (Act 28th May, 1715, § 6, Pur. 472), with Lewis, his heirs and assigns," that the grantor was seised of an indefeasible estate, in fee simple, freed from incumbrances done or suffered from the grantor, in gas ⚫as also for quiet enjoyment against the grantor, his heirs and assigns." And Wood further covenanted (by special warranty in usual form) with Lewis, etc., and assigns, all and singular the premises above described, with the appurtenances, against the said Wood, etc., and all persons lawfully claiming under him, to warrant and defend. By mesne conveyances from Lewis the said premises as conveyed to Lewis were vested in fee on June 14, 1879, in Edwin D. Judd. Judd, in order to have the flow of restored to the premises, after demand on Wood's executors, and their refusal, was obliged to pay, on December 29, 1879, the aforesaid sum of $61.12, the amount of arrearages aforesaid, the existence of which was the only reason the gas works withheld the gas from the premises. At the audit Judd claimed to recover that sum, with interest, as damages for the breach of the covenants, express and implied, in the deed of Wood to Lewis, which claim the Auditing Judge disallowed, and exceptions thereto were filed, as to finding of facts, and also as to the not finding as a matter of law: (1) That the facts proved by E. D. Judd constituted a breach of one or more of the covenants severally to be implied from the terms (inter alia), "grant, bargain and sell," of the deed of H. C. Wood to G. T. Lewis, January 7, 1876, and that E. D. Judd was entitled to recover from H. C. Wood's estate on said covenant or cove nants. (2) That the said facts constituted a breach of the covenant of warranty in said deed from H. C. Wood to G. T. Lewis, and that E. D. Judd was entitled to recover thereon. (3) That under the above facts Edwin D. Judd is entitled to recover from the estate of Horatio C. Wood the sum of $61.12, with interest from December 29, 1879; and that the learned Judge erred in finding as matter of law, as follows:— I. Tyson Morris, for exceptant. "Caveat emptor" applies to purchasers of real estate. Therefore covenants from the vendor are required. When taken, the vendee can recover thereon, although he knew previously to the sale of the defect which constitutes a breach of such covenant. Shaffer v. Greer, 6 Norris, 370. Therefore it is immaterial here whether Judd could have obtained accurate information from the gas works as to the arrears due for gas. Judd's claim depends on whether there has been a breach of any covenant, express or implied, in Wood's deed to Lewis for the factory now owned by Judd. And that question depends, it is believed, on the determination of whether (1) Wood had a contract right to have the Philadelphia Gas Works furnish said factory with gas, as long as said gas was manufactured by said works, and the owner of the premises complied works' reasonable regulations. with the gas (2) Whether any owner of premises in Philadelphia has on compliance with the reasonable regulations of the gas works a right to have said premises supplied with gas as long as said works have it to supply to any one. It is in evidence and uncontradicted that a supply of gas from the gas works was necessary to the full enjoyment of said premises, and at the time of the sale from Wood had been introduced and conveyed through the same by pipes. which passed with the conveyance of the premises. These facts bring such right to have gas within the cases holding that by a conveyance of a mill the whole right of water enjoyed by the grantor as necessary to its use passes along with it. Strickler v. Todd, 10 S. & R. 63, 69, 70. Peters v. Grubb, 9 Harris, 455. So a conveyance of a house carries with it pipes conveying water to it over other land. Nicolas v. Chamberlain, Cro. Jac. 121. a So a sheriff's sale of land passes as appurtenant right to use an alley. Cope v. Grant, 7 Barr, 488. "The incident accessory appendant and regardent shall in most cases pass by the grant of the principal without the words cum pertinentiis by the grant of mills the waters. and the like that are of necessary use to the mills do pass." Shep. Touch., *89. If, then, such a right to have gas was con 66 veyed by Wood to Lewis, it was, as part of what | Works, 6 Wis. 539; Young v. Boston, 104 Mass. Wood "granted, bargained, and sold," the subject of his covenant to Lewis and his assigns, to wit (Act 28th May, 1715, §6): that he, Wood, was seised of an indefeasible estate in fee simple," in the thing granted, "freed from incumbrances done or suffered from" him; and also the subject of Wood's covenant to Lewis and assigns for quiet enjoyment," of the thing granted, "against the grantor, his heirs and assigns;" and also the subject of Wood's further covenant of warranty with Lewis and assigns, which covenant was in substance: "All the premises with the appurtenances against the said Wood and all persons lawfully claiming under him to warrant and defend." A deprivation of such right, consequent on Shepard v. Milwaukee Gas Co., 6 Wis. 539. 95; Lumbard v. Stearns, 4 Cush. 60; Dayton v. Quigley, 2 Stew. N. J. Eq. 77.) A supply of gas was essential to the proper enjoyment of the premises, and the necessary facilities for its introduction had been provided by the grantor. The grantor thereby acquired a right to call upon the city to furnish him with gas, so long as he or his assigns should comply with the reasonable regulations for its supply, and this right passed to his grantees and their assigns. It was part of the rules imposed by the trust, and assented to by the grantor, that the flow of gas should be stopped at any time until all arrearages for past supplies should be paid. When his tenant defaulted, the penalty thus agreed upon took affect; and the act of the owner created a direct incumbrance upon the land. The principle that a covenant against incumbrances is broken whenever a third party has any interest in or right to the land granted to the diminution of its value, is amply illustrated by the cases in which a private way, or a restriction against building, or against the sale of liquors, has been held to be such an incumbrance. (Harlow v. Thomas, 15 Pick. 68; Mitchell v. Warner, 5 Conn. 497; Butler v. Gale, 1 Williams (Vt.), 739; In re Whitlock, 32 Barb. 48; Hatcher v. Andrews, 5 Bush. Ky. 561.) If this should be doubted, it must still be conceded that the act of the landlord was at least a breach of his covenant for quiet enjoyment, which latter goes to the possession and not to the title. In Peters v. Grubb (9 Har. 466), it was held that the right to water was essential to the enjoyment of a mill, and that a partial deprivation of that right by a paramount claimant was a breach of the covenant. See, also, Moore v. Weber (21 P. F. Sm. 429); Hoeveler v. Fleming (10 Nor. 322). May 31, 1884. THE COURT. The covenants implied by the words "grant, bargain and sell," in a fee simple deed, have been defined by the Act of May 28, 1715 (Pur. 472, pl. 75), to be that the grantor was sesied of an indefeasible estate in fee simple, freed from incumbrances done or suffered from him, and for quiet enjoy- We do not think that the right of the excepment. The various decisions under that Act tant to claim against the original covenantor for restrict these covenants to a special warranty a breach of one or more of these covenants was against the acts or incumbrances of the vendor forfeited by any laches on his part. He might and those claiming under him. (Gratz v. Ewalt, by inquiry at the gas office have ascertained that 2 Bin. 95; Knepper v. Kurtz, 8 P. F. Sm. 480.) arrearages were due by the tenant, and that the The present inquiry must therefore be directed gas had been shut off from the property in conseto the question whether the right of user, which quence, and his payment to the trustees could had been disturbed, was a mere license or an then have been deducted from the purchaseeasement which ran with the land, and whether money. But that he was bound to such diligence the act complained of was the act of the vendor in the face of the covenants and warranty conand a breach of his covenants. As to the first tained in the deed, would be contradictory of point there is apparently little difficulty. The their purpose, which was to protect him and not city may not be bound to furnish gas to its in- the grantor. This view was taken in Harlow v. habitants (Girard Life Ins. Co. v. F. & M. Bank, Thomas, supra, where evidence of the pur7 Nor. 394), but when it has erected works for chaser's prior knowledge of the existence of the the manufacture of gas, and through its ordi- private way was held inadmissible to control the nances has invited the citizen to fit up his premises effect of the covenant. for the introduction of that article, it cannot capriciously withhold it so long as the gas works are operated. (Shepherd v. Milwaukee Gas The exceptions are sustained, and the adjudication is amended accordingly. Opinion by ASHMAN, J. W. C. S. WEEKLY NOTES OF CASES. |policy of insurance of $4000 upon grain stored in his mill, which was valued at $8000. The application contained a clause providing that the company in case of loss should "only be obliged to pay as if they had insured two-thirds of the VOL. XV.] THURSDAY, SEPT. 25, 1884. [No. 7. actual cash value of such property." It also con Fire insurance Warranty Application-Negligence-Proofs of loss-Estoppel-Double insurance-Prorating. Where the answer to an interrogatory in an application for a policy of fire insurance is indefinite and ambiguous, notwithstanding which the company issues the policy applied for, it cannot subsequently, in case of a loss under the policy, set up as a defence a breach of warranty on the part of the insured in answering the interrogatory. The company should in such case demand more specific information as to the subject matter of the interrogatory before issuing the policy. Where a loss occurs under a policy of fire insurance, mere negligence or carelessness on the part of the insured in relation to the fire does not constitute a defence which can be set up by the insurance company. A party presenting proofs of loss under a policy of fire insurance is not estopped, by the valuation of the goods destroyed therein contained, from subsequently proving a higher valuation. tained the usual clause to the effect that the answers to the interrogatories therein contained constituted a warranty on the part of the insured. Among others, the application contained the following interrogatory and answer : 12. Is there other insurance on this property? If so, in what company? to what amount? On building, $2500, in Fire Insurance Company of Northampton County, Easton; on building, $2500, in Farmers and Mechanics' Mutual Fire Insurance Company, Millersburg, Pa.; on building, $2500, in Farmers' Mutual Fire Insurance Company of Northampton, Nazareth, Pa.; on stock, $2250, in Union Mutual Fire Insurance Company of Pennsylvania, Nazareth, Pa. Above is additional on mill and stock. The company last named is commonly known as the Kreidersville Company, and was so referred to on the trial. Kepler's policy in said company was upon "contents in mill, grain, flour, etc., valued $3000." It was conceded to embrace certain furniture and machinery not covered by the policy of defendant, and which was valued at $336. Subsequently on May 11, 1878, a policy of insurance was issued to plaintiff by defendant in pursuance of the former's application. This policy contained, inter alia, the following clause: Certain property was destroyed by fire which was valued "That if the insured, or any other person or parties inat $6000. The loss was covered by two policies of insur-terested, shall have existing, during the existence of this ance, one in the sum of $4000 upon two-thirds of the policy, any other contract or agreement for insurance actual cash value of property destroyed, and the other in (whether valid or not) against loss or damage by fire on the sum of $1998. In an action by the insured against the property hereby insured, or any part thereof, not conthe company issuing the first-named policy: sented to by this company in writing, and mentioned in or indorsed upon this policy, then this insurance shall be of no effect; and if consent be indorsed thereon, the insured shall not be entitled to demand or recover of this company any greater portion of loss or damage sustained than the amount hereby insured shall bear to the whole amount of such contracts or agreements for insurance (whether valid or not) or made before or after the date of this policy." Held, that as the total insurance did not cover the total cash value of property destroyed both companies must pay the amount of their respective insurances in full, and that the company issuing the first named policy could not claim that they were entitled to prorate with the other company as to the sum of $4000, for which they were liable, so as to render them responsible for two-thirds of two-thirds of the actual loss only. Whether where two insurance companies issue policies which are in part only upon the same property, there is such a double insurance as to entitle the companies to prorate on a loss under the policies, not determined. Error to the Common Pleas of Northampton County. Covenant, by Tilghman Kepler against the Lebanon Mutual Insurance Company upon a policy of insurance issued by defendant to the plaintiff upon a stock of grain in his mill. Upon the trial, before MEYERS, P. J., the following facts appeared: On May 4, 1878, Tilghman Kepler, the plaintiff, presented to the company defendant a written application for a On July 24, 1880, a loss occurred under the policy. There was some evidence to show that this was occasioned by the carelessness of plaintiff in allowing his mill stones to run empty so as to strike sparks, which were very likely to set on fire the dry bran and oat shells lodged in and about the machinery. It would have been prudent to have cleared away this dry inflammable matter, but this plaintiff failed to do. On August 2, 1880, plaintiff presented to the defendant proofs of loss wherein the total value of the goods insured by the defendant and destroyed by fire was fixed at $5892.90. Subsequently on the trial he offered evidence to show |