Book v. Book

104 Pa. 240 | Pa. | 1883

Mr. Justice Sterrett

delivered the opinion of the court, October 22d 1883.

The sole question in this case is whether the sealed instrument, executed December 2d 1875, by Jacob Book and his son Michael, is a testamentary disposition of the land therein described, or a contract for the sale of the same by the father to his son. If it is a contract, the verdict and judgment are clearly right. On the other hand, if it is a testamentary disposition of the property, it was revoked by the subsequent will of Jacob Book, and the judgment is erroneous.

As was said by Mr. justice Sharswood in Bond v. Bunting, 28 P. F. Smith 210, “ It is certainly the tendency of all the modern authorities to maintain the general doctrine, which may. be stated as a formula, that whenever the party has the power to do a thing (statute provisions being out of the way) and means to do it, the instrument he employs shall be so construed as to give effect to his intention.” Tested by this principle the question is of easy solution. In form, the instrument upon which the contention hinges has all the features of a contract. It is impossible to read it without coming to the conclusion that both parties regarded it as an agreement for sale of the land, on terms therein specified. It contains mutual covenants of the parties by which they respectively bound themselves to the performance of certain things. They each acquired rights and assumed reciprocal obligations which took effect, not upon tlie death of Jacob Book but immediately upon the execution, of the instrument By the terms of the instrument, Jacob Book not only became entitled to the consideration money therein mentioned, but he acquired the right to the erection of a new dwelling-house or the repair of the old one, and thereafter during his life, to have the buildings so kept in repair, at the expense of his son Michael, as to make them reasonably comfortable and suitable for use. He also secured for his daughter Jemima the right to receive one hundred and fifty dollars annually, during life, and a room in the mansion house-for her own use while she remained single. On the other hand, Michael acquired the right to take timber and other materials from the land for the building and the repairs he agreed to make; also the right to require* his father to pay all taxes and “ to use the premises in such reasonable manner as not to deteriorate or depreciate their value,” and at his father’s death, if not before, to have the legal title to the land assured to him by an appropriate conveyance. It is very clear that for the breach of some of these covenants, at least, the parties respectively would have had a right of action against each other. If Michael, for example, had refused to build the new house or make the stipulated repairs, it cannot be doubted his father would have had a right of action against him for damages. These and other characteristics of the instrument clearly distinguish it from a will, which, being intended to take effect upon the death of the testator and not before, is ambulatory and revocable during his life, while, on the other hand, the paper under consideration is a contract between two parties, securing rights and creatiug obligations which are enforcible by the parties respectively, and not revocable at the pleasure of either without the assent of the other. It is not necessary that a contract for the sale of real estate should vest in the vendee a right of immediate and exclusive possession. It is enough if it creates, as the contract in this case did, a vested interest to be enjoyed in possession, in futuro. According to the intention of the parties, as expressed upon the face of the instrument under consideration, it can have effect and operation only as an agreement for the sale of land.

It is claimed by plaintiffs in error that this case is within the principle recognized in Turner v. Scott, 1 P. F. Smith 126; but a cursory examination will show that the cases- are widely different. In that case, the instrument was in the form of a deed of conveyance in which, however, it was expressly provided that the “ conveyance is in no way to take effect until after the decease of John Scott, the grantorand the habendum was to have and to hold the premises “ after the decease of said John Scott.” By the very terms of the instrument the idea of a presently vested interest in the grantee was excluded. The words employed are an emphatic declaration that no interest shall be considered as presently conveyed so as to interfere in any way with the life estate; and the habendum. is equally explicit in declaring that the estate intended to be conveyed shall not commence until the death of the grantor. It was manifestly a disposition of the property to take effect after death and not before; while the instrument under consideration took effect immediately and created a vested interest which could not be divested by the subsequent will of Jacob Book.

Judgment affirmed.