109 Pa. 606 | Pa. | 1885
delivered the opinion of the court,
It is clear that William Wilson, under his agreement to purchase the property of Elias Kirk, was entitled to the possession before or at the time of the payment of the instalment of $4,000, on the 1st April, 1883; and, unless that right was in some way waived by Wilson, lie could stand upon it as a condition of bis contract. It is equally clear that the existence
The learned court below was of opinion, however, that under the law the defendant’s right was waived by the acceptance of the deed and the payment of the instalment in advance of the day designated in the contract for that purpose and for delivery of possession. We cannot see how the case can be affected by the mere fact of a payment of the purchase money and an acceptance of the deed in advance. If the contract had been for the payment of the money and delivery of the deed on the 26th March, 1883, and for possession on the 1st April following, the case presented would not, in our opinion, be in any respect different in principle.
The defendant.alleges that he had no knowledge of an absolute lease at the. time of the acceptance of the deed; that Kirk had'told him the lease to Van Winkle was conditional, and was to be inoperative in case of a sale of the property; that although Van Winkle and others told him the lease was absolute in form and effect, Kirk assured him it was not, and that there would be no difficulty about the possession. The evidence on this subject is certainly very conflicting, but if the defendant’s version of the matter is the correct one, he has some cause of complaint. Kirk was the party with whom Wilson contracted ; it was Kirk’s duty to deliver the possession, and whether he had put that possession out of his power was a fact peculiarly within his knowledge. Wilson was not only justified in believing, but he was bound to believe Kirk’s statement as to this; and Kirk is in no situation now to say that Wilson should have discarded his statements as false, to accept any other. Assuming that Van Winkle’s claim put Wilson upon inquiry, yet inquiry of Kirk, where inquiry was most proper to be made, only proved Van Winkle’s claim to be worthless. The deed which was delivered has not been printed; whether it contains any covenant of warranty, general or special, does not appear, and in our view of the ease this is perhaps not important.
A vendee may defend on the ground of the existence of an incumbrance unknown to him when he accepted a deed, though it contain a general warranty: Steinhauer v. Witman, 1 S. & R., 438; Roland v. Miller, 3 W. & S., 390. In the case last cited Mr. Justice Kennedy states the rule as follows: “The doctrine of Steinhauer v. Witman is, that if the consideration money has not been paid, the purchaser, unless it
The defence set up here is an equitable one, arising out of the same contract and transaction upon which the plaintiff’s judgment was obtained; if sustained by the proof it affects the consideration of the bond, and is competent to defeat it; for, if the consideration fail, in whole or in part, the plaintiffs right to recover must also fail pro tanto: Patterson v. Hulings, 10 Barr, 506; Blessing v. Miller, 6 Out., 45.
If, however, the facts are not as contended by the defendant, if he was not only notified by Van Winkle, but by Kirk himself, that the property had been leased to Van Winkle absolutely for another year, and if, with this knowledge he accepted the deed, a different rule would apply.
For if a vendee, with knowledge of the existence of an incumbrance or of a defect in the title, accept a deed with a: warranty against it, and gives his bond for the purchase money,, the continued existence of such incumbrance or defect is no defence to an action on the bond: Fuhrman v. Loudon, 13 S. & R., 386; Wilson v. Cochran, 48 Pa. St., 107. Or, if a vendee purchase with knowledge of a defect of title, and take no* covenant against it, he cannot set it up as a defence in an action for the purchase money: Cadwalader v. Tryon, 37 Pa. St., 318. In the one case the vendee chooses to rest upon his covenant, and in the other he agrees to run the risk of the title. The case wholly depends, therefore, upon the proper determination of the question of fact, whether or not the deed was accepted upon the faith of Kirk’s statement, that the lease was conditional only, and that it was to have no effect in the event of a sale. If it plainly appeared that Wilson knew of the absolute character of the lease to Van Winkle, and accepted the deed without objection on that ground, he would be presumed to have waived the delivery of the possession, as stipulated in tlie agreement. Upon tins question of fact the testimony is contradictory and conflicting. The learned court below did not pass rmon it, and we do not desire to dis-
The decree of the Common Pleas is therefore reversed; the rule is made absolute ; the judgment opened and the defendant let into a defence; the appellee to pay the costs of this appeal.
