# Murphy v. Green > Superior Court of Pennsylvania · October 9, 1911 · 48 Pa. Super. 1 URL: https://www.frixlaw.com/law-library/cases/6277268 ## Case - **Full name:** Murphy v. Green - **Court:** Superior Court of Pennsylvania - **Decided:** October 9, 1911 - **Citations:** 48 Pa. Super. 1; 1911 Pa. Super. LEXIS 330 - **Precedential status:** Published - **Opinion:** Dissent by Head - **Judges:** Beaver, Head, Henderson, Morrison, Orlady, Porter, Rice - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6277268 ## Opinion text Head, J., dissenting: Even if the Act of April 27, 1855, P. L. 368, could be fairly regarded as an isolated enactment, it would be difficult for me to find, within the limits marked by its expressive language, a foundation to support the interpretation of it declared in the majority opinion. To my mind this difficulty becomes insurmountable if we view that act as but one step in the long march of legislation, the ultimate object of which was to “unfetter” real estate and make it freely alienable. That it must be so viewed, its every section seems to assert. The first and perhaps most familiar one declares that thereafter every estate tail, no matter with what solemnity created, “shall be taken and construed to be an estate in fee simple, and as such shall be inheritable and freely alienable.” Its seventh section, breathing the same spirit, provides: “That in all cases where no payment, claim or demand shall have been made on account of any ground rent' for twenty-one years, .... a release or extinguishment thereof shall be presumed.” As if to prevent any discussion as to the nature or effect of this presumption, these words are added, viz.: “and such ground rent shall thereafter be irrecoverable.” It seems clear to me then that the legislature plainly defined a condition which, if permitted to exist for more than twenty-one years would inevitably, ex vi statuti, be *24 followed by the declared result that then, in such event, “a release or extinguishment thereof (of the ground rent) shall be presumed and such ground rent shall thereafter be irrecoverable.” The appellant here relies not merely on the presumption created by the statute, which, as was pointed out by Mr. Justice Paxson in Biddle v. Hooven, 120 Pa. 221 , is a legal presumption “which cannot be rebutted,” but on the admitted and thus established fact that the condition defined by the act had continuously existed for a period of half a century. Certainly then, had the owner of the alleged ground rent undertaken, for example in 1899, to have maintained an action for the recovery of the rent, his way would have been absolutely barred by the flat prohibition of the statute. But even in passing the act of 1855, the legislature, in its wisdom, had not yet determined that the time was ripe for the final step putting it beyond the power of the owner of land to charge it with an irredeemable ground rent. It would therefore have been competent at any time, after the act of 1855 and prior to the act of June 24, 1885, to which I shall later refer, for the owner of the land to have again bound it by a ground rent, in all respects similar to the one which could no longer be enforced by reason of the act of 1855. And, if the parties could accomplish that object directly, it might be argued with some plausibility that they could reach the same result by some indirect action, payment, demand, etc., plainly indicative of their mutual intent. This question, however, is not before us. But in 1885, in the act already referred to, the legislature finally determined that the existence of irredeemable ground rents constituted an obstacle to the evolution and development of the public policy of the state and absolutely prohibited their future creation. “Whereas, The policy of this commonwealth has always been to encourage the free transmission of real estate and to remove restrictions on alienations; Therefore, Section 1. Be it enacted, etc., That from and after the passage of this *25 act, no irredeemable or nonextinguishable ground rent shall be charged upon, or be reserved out of, or for any land within this Commonwealth.” At the time that declaration of public policy was made and the prohibition necessary to effectuate it was announced, what was the status of the ground rent here sued for? By the admitted facts, for a continuous period of thirty-six years after its creation in 1849, no payment, claim or demand had been made on account of it, and as I view it there was no possible way by which the ground rent owner could have recovered anything, because the act of 1855 had so emphatically declared that under such circumstances the ground rent should be irrecoverable. But the act of 1885 had wrought an entire change in the control of the parties themselves over the land in question and had declared that no matter what their purpose, intention or desire might be, it was no longer competent for them in any way to thereafter fasten upon land the fetter of an irredeemable ground rent. There was no way in which the ablest of counsel or the most astute of conveyancers could have aided John Roberts, in 1900, to create an irredeemable ground rent. The conclusion of the majority opinion that he could accomplish by the mere statement of an alleged fact in an affidavit which he filed, what he could not do by the most formal and solemn instrument legal talent could devise, I am wholly unable to accept. The doctrine of estoppel has its foundation in that sense of common justice and fair dealing recognized and upheld by most civilized men. If John Roberts, by his declaration that the property he owned was subject to a ground rent, induced another to purchase that rent, he ought not to be permitted thereafter to deny it to the injury of that purchaser. But while the landowner thus declared that his land was subject to a ground rent, he did not undertake to say that such rent was an irredeemable one, and even if he had so stated and honestly desired to subject to it such rent, he was powerless to effectuate that desire. Presumably both he and the purchaser of the *26 ground rent knew the law, and neither of them had any right to assume that the result of his declaration could accomplish anything more than to bind the land with a ground rent redeemable in the manner provided by the statute. The present owner of the land, who, I am willing to concede, stands in the shoes of John Roberts, because he bought with due notice in the line of his title, contends that if his land be burdened at all, it can at most be subject only to a redeemable rent. He has undertaken to redeem that charge by tendering to the plaintiff and thereafter bringing into court'the amount of money at which the statute capitalizes such ground rent, in the absence of a provision of that character made by the parties themselves. I cannot escape the conclusion that the learned trial judge should have permitted or directed the plaintiff to take this money out of court and then entered judgment in favor of the defendant. This would give to the doctrine of equitable estoppel reasonable effect and operation; would, as I view it, do justice to all parties concerned, and prevent a conclusion which I am wholly unable to harmonize either with the plain legislative command or the sound public policy on which it was based. I have not thought it necessary to again go over the decisions so elaborately reviewed in the majority opinion. I think it sufficient to say that I do not understand the majority opinion even to contend that any one of them is of binding or controlling force in the determination of the exact question raised by this record. No one of them was predicated on such a state of facts as we have now before us, and sound conclusions can rarely be reached by attaching undue importance to forms of expression which were uttered always with reference to the state of facts then under consideration. For the reasons herein outlined as briefly as possible, I am, with all due respect for the majority of the court, unable to concur in the conclusion they have reached. Rice, P. J., and Henderson, J., concur in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6277268. Public record. Not legal advice.