Burton v. Morris

Headnote

An agreement between tenants in common that each “shall have, collect, receive and enjoy” the ground rents of certain lots held in common, ■ “to him, his heirs and assigns forever, and clear from the other;” held not to sever the tenancy in common, there being no words of conveyance.

Replevin. Cognizance and avowry for rent arrear, due to Payn-ter Jefferson, for a house and lot.

William Jefferson, by will bearing date in August, 1835, bequeathed to Paynter Jefferson one-third of the ground rents of certain lots, situate in the village of Washington, Sussex county. These lots were let out on perpetual ground rent leases, the rent due and payable on the 1st of January annually. After the death of William Jefferson, his three children received the ground rents in common, until the 1st of January, 1839, when they made partition by deed dated that day, and this particular lot held by John H. Burton, was allotted to Paynter Jefferson, the defendant. This distress was for the rent of 1838, which fell due the 1st of January, 1839, and the questions were — 1st. Whether P. Jefferson could alone distrain for the rent of 1838, as the alienee under the partition deed. 2d. Whether this deed did in fact sever the tenancy in these ground- rents, there being no words of conveyance, but merely an agreement to divide.

The deed was between Paynter Jefferson and Thomas P. Jefferson, and witnessed “that the said Paynter Jefferson and Thomas P. Jefferson have divided the ground rent of lots situate in the village of Washington, Delaware, according to the following order, viz: [Paynter Jefferson is to have, collect, receive and enjoy all the ground [rents from W. D. W., John H. Burton, &c., &e., which the afore[said P. Jefferson is to have, him the said P. Jefferson, his heirs and [assigns forever, free and clear from him, the said Thomas P. Jeffer-fcon,. his executors, administrators and assigns;” (and a similar agreement on the part of Paynter Jefferson.)