5 Watts 164 | Pa. | 1836
The opinion of the court was delivered by
In the course of the argument, this action has been called a substitute for a bill in equity; but there is nothing peculiar
Whether the sale of the land, being made in the first instance, only by one of the executors, and the transactions afterwards in regard to it, tending to show the subsequent acquiescence or approval of it, by the other executors, be good or not, is a question which has not been raised, and, therefore, need not be decided: But several errors have been assigned, which, taking the sale of the land to be good, may all be disposed of by answering the following questions, to wit: 1. Was the plaintiff bound by his agreement to execute a deed of conveyance to the vendee for the land? 2. If he was, when was he bound to do so, according to the terms of the agreement? 3. Can he recover in this action without having ten
As to the first question, we think it plain from the, whole tenor of the articles of agreement, that they must be regarded as executory merely; and that it was not intended by the parties thereto, that the title which the testator had for the land at the time of his death, should thereby pass immediately, and become vested without more in the vendee. This is clearly evinced by several provisions contained in the articles. For instance, the covenant on the part of the seller to deliver the possession of the land on the first of the following April, without a previous reservation of it till then, is inconsistent with the idea and the purpose that the articles of agreement were considered as a deed of conveyance, passing, at once, the title to the bond, from the seller to the purchaser, which would have carried with it the right to have taken the possession of the land immediately: But this covenant to deliver the possession without any previous reservation of it, shows very clearly that the parties did not consider the previous words of sale in the agreement as sufficient to pass any right that would authorise the purchaser to take possession of the land before he paid the purchase money; but this covenant entitled him to receive it when he paid the one half, and gave his bonds to secure the payment of the remaining half. The giving of the bonds, it is true, is not provided for by an express covenant on the part of the purchaser, but that such was the understanding of the parties is plainly inferrible from the words of the covenant on the part of the seller to give a deed; which are as follow, to wit, “but before the two first bonds are paid, the said James Brown binds himself to give Daniel a free deed out of the land office, or give him security that he will give such a deed before the third bond is paid.” And although bonds are not mentioned in any previous or subsequent part of the agreement, yet in ■order to make sense of the agreement, the bonds, here spoken of, must be understood as bonds then within the contemplation of the parties, that were to be given to secure the payment of that portion of the purchase money which was to be paid by instalments annually; and which, as it appears, were accordingly given. But that a deed of conveyance was to be executed by the plaintiff to the purchaser, is still further manifested by a fair and reasonable construction of this covenant just recited, which is, “to give Daniel a free deed out of the land office.” The words used here are not very explicit, it is true, nor well suited to give a perfectly distinct and clear understanding of the meaning of the parties, but still, when taken in reference to the subject matter of their contract, they may serve to show, with reasonable certainty, what was intended. In the clause immediately preceding, is contained the covenant of the plaintiff to deliver the possession by the 1st of April then next fol
This disposes of the first question, and brings us to the second, which has been substantially answered in what has been said on the first." Indeed, if the first has been rightly answered, there is no room to doubt’ in regard to the time at which the deed was to be made to Stout; for, by the express terms of the agreement, it was to be “ before the third bond was paid,” which meant the third instalment of the second half of the purchase-money, which fell due on the 10th of April 1821.
We next come to the third question, which appears to have been decided by this court in the negative, in Southerland v. Purry, 2 Penns. Rep. 145. It seems to have been the only point made in the cause. There the plaintiff, after having received a part of the purchase-money, commenced his action, which was an ejectment, without previously making and tendering a deed of conveyance to the purchaser for the land, and it was held that he could not recover, because, by the terms of the agreement of sale, the residue of the purchase-money was not to be paid until the deed should be made. To have sustained the action under these circumstances, the court thought would have been in effect permitting the plaintiff to violate his covenant in that behalf expressly made with the defendant, which, according to our system of jurisprudence and the organization of our courts, ought not to be suffered, though the plaintiff be invested with the legal title to the land. The case of Smith v. Webster, 2 Watts 478, however, has been referred to as establishing an affirmative answer to the question here, and as militating against the doctrine laid down in Southerland and Purry; but we do not think so. They are perfectly consistent with each other. In Smith and Webster, according to the terms of the agreement between the parties, the deed of conveyance was not to be made to the purchaser,
It is true that a distinction is there mentioned between a personal action, brought by the seller, founded upon the contract for a breach of it, by not paying the purchase-money, which can only be maintained against the purchaser himself or his legal representatives, and an action of ejectment, which must be against whomsoever is in the actual possession of the land at the time, and is maintained exclusively by the seller upon the ground of his being still invested with the legal title to the land, and his not being bound by his agreement to part with it until he shall be paid the purchase-money; and that in the first action where the payment of the purchase-money and the making of the deed, are, according to the agreement, to be simultaneous acts, a deed must be made and tendered by the seller before the institution of the suit, though not requisite in the ejectment, for the reason already mentioned that the latter is not founded upon the agreement; but in no case is it said that even this latter action can be maintained in violation of the rights of the vendee vested in him under the agreement.
Although in the answers given to the first three questions it has been shown that the plaintiff is not entitled to maintain this action, it may perhaps prevent any future and vain attempt by a subsequent ejectment to recover the possession of the land, to answer the fourth question.
According to a proper construction of the agreement, it has been shown, that the plaintiff was bound to have made a perfect legal title to the vendee for the land, before the third bond or instalment of the last half of the purchase money became payable, which was on the 10th of April 1821. And as the plaintiff was not bound to part with his title, until after the first two bonds became payable, and were paid, it might not be unreasonable to consider him as having a right under the agreement to retain it, as long as these bonds were unpaid, but beyond these the terms of the agreement would certainly not warrant. It appears, however, that not only these two bonds have been paid by Stout,'but likewise the next two succeeding, thus making good the payment of all the instalments up to the year 1822 inclusive. This being the case, it is evident that the plaintiff was not only bound in law by his covenant, but in equity and good conscience too, seeing.no good reason has been offered for his not fulfilling it, to have parted with the title to the land, by making a deed conveying it to his vendee long before this suit was instituted. If the plaintiff had performed his covenant in this respect, it is cei’tain that he could not thereafter have maintained an action of ejectment for any purpose whatever. But here, where
Judgment affirmed.