113 Pa. 58 | Pa. | 1886
delivered the opinion of the court,
However much the parties may differ as to the terms of the parol contract made prior to May 9th, 1877, on that day, as averred in the answer, Evans executed the deed, and by agreement it was put into the hands of Berry as au escrow; and the -notes for the purchase money were also placed in the hands of said Berry, with the understanding that if the note first due should be paid at the expiration of ten days the deed should be delivered to Baum. This averment accords not only with the facts alleged in the bill respecting the final agreement, but with those found by'the Master. Among the facts stated in the report is that the deed and notes, “all of which bore date May 9th, 1877, should be left with defendant B.erry as the representative of the parties, with the agreement that should the plaintiff pay the $500 within the ten days
“ The delivery of a deed as an escrow is said to be when one doth make and seal a deed and deliver it unto a stranger, until certain conditions be performed, and then be delivered to him to whom the deed is made to take effect as his deed. And so a man may deliver a deed, and such delivery is good.” Generally an escrow takes effect from the second delivery, the title not being perfected in the grantee until the happening of the condition. But the grantor, when the deed has been placed in the hands of a third party as an escrow, cannot after the happening of the act in which delivery is conditional, prevent delivery taking effect by getting possession of the deed: 2 Whar. on Cont., § 679, Regan v. Howe, 121 Mass., 424.
Upon payment of the promissory note in ten days the deed was to be delivered to Baum by Berry. All parties admit that was the sole condition. It was not expressed that time was of the essence of the contract. The land was oil territory, and so situated as to be liable to sudden increase or decrease in value. In the negotiations the vendor insisted on immediate payment of half the purchase money, and delivered the deed on condition that it should be paid in ten days. He promised to extend the time, as will be hereafter noted. The nature of nearly all mining contracts is such as to render time essential, and in several cases it has been held of the essence in contracts for the sale of mines and works : Frye on Spec. Perf. of Cont., § 716. This principle ought to be applied to the stipulation in the condition respecting the deed, subject only to the enlarging of the time for performance by the vendor.
The Master finds that on the 23d of May, Evans agreed to wait for the payment until the evening of the 25th, that lie again agreed to wait until the evening of Saturday, May 26th, and that on the following Monday, Baum “saw Evans, explained the reason of the delay, and why he would like still iurther time, but proposed to raise the money and pay then if Evans so required, to which Evans said, ‘ Let it rest a few days, Baum, and if I need the money I will come and see you.’ On Saturday, June 2d, Baum tendered to Berry the amount of the ten day note with the trifle of accrued interest, and demanded the delivery of the deed. Berry declined to receive the money as payment to Evans, and declined to deliver the deed, for the reason that Evans, sometime between May 28th and June 2d, bad so notified him.”
No complaint is made by defendants of the findings of fact. Indeed it might well have been found that when the contract was made Evans promised that if the note was not at
It appears in the testimony that soon after the agreement made on the 28th, Coddington, who claimed some interest in the land, induced Evans to attempt to annul the contract, and to that end the notice was given to Berry not to deliver the deed. But Evans gave no notice to Baum that he wanted the money, or that he considered default had been made in performance of the condition. Baum could rely on the promise of Evans to give him notice for a reasonable time; not receiving the notice, he promptly tendered 'the money and demanded the deed. Conceding that Evans had the right to require performance of the condition within the ten days, and within any time thereafter, he did not; on the contrary, from the making of the contract until after he gave the notice to Berry, in every interview with Baum he agreed to postponement of the payment. His conduct was calculated to throw Baum off his guard, to induce him to believe that time was not of the essence of the condition, and under the circumstances the condition was well performed within five days after the last postponement.
■ We are unable to agree with some of the Master’s inferences from the actual facts. It is admitted in the answer that the deed was delivered as an escrow. The evidence shows this admission was correct, not a mistake; at the same time the notes were put into Berry’s hands. Baum was obligated to pay the notes. Evans had no right to withdraw the deed, unless Baum failed to perform the condition. It was error to rule that the parties had done no more than to make propositions to each other, which either was at liberty to withdraw, even before the expiration of ten days.
Nor was the promise made by Evans on the 28th of May, void. It must be viewed in the light of what had preceded respecting the giving of time. Both Baum and Evans acted as if Baum had the right to pay the money on that day; he did not, on the faith of Evans’s promise. True, there had been no express promise to extend the time beyond the evening of the 26th, but it is obvious the parties understood the right to perform the condition existed on the 28th, a rational inference from their previous conduct.
Nor is the proceeding premature. It is a familiar principle that the remedial justice of a court of equity is often’most beneficially applied in favor of persons entitled to the custody and possession of deeds. “ And a case where a deed has been
This is not the case where the plaintiff claims to recover possession of land under an adverse title distinct from the defendant’s grant. The plaintiff claims the land by purchase, and that the deed was delivered in escrow by the vendor. His bill is to compel the handing over of that deed. Unless his right to the deed is clear, he has no case at law or in equity. If clear, it is peculiarly within the province of a court of equity to give him the specific relief to which he is entitled.
1. And now it is considered and decreed that the decree of the court below be and is reversed.
2. That the defendants, R. W. Evans and Geo. A. Berry, deliver unto the plaintiff, B. W. Baum, the deed described in the bill, within ten day-s after notice of this decree.
8. That R. W. Evans, appellee, pay all costs, including costs of this appeal.
4. That the- record he remitted for enforcement of this decree.