147 A. 838 | Pa. | 1929
Argued October 4, 1929.
Defendants appeal from a decree in equity requiring them to specifically perform a written agreement for an exchange of properties "on or before May 10, 1928 . . . . . . . . . . . by deeds of general warranty . . . . . . . . . . . in fee simple, clear of all encumbrances, except as hereinafter mentioned." On May 1, 1928, defendants conveyed their property to the brother-in-law of one of them, by a deed which purported to be in fee simple, but was, in fact, in trust for the grantors. On May 10, 1928, the day specified for settlement, plaintiffs tendered to defendants a fee simple deed for their property, and demanded a like deed to themselves for defendants' property. Without assigning any reason, defendants declined to accept the tender, and refused to convey their property to plaintiffs. On the same day plaintiffs issued a summons in equity against defendants and the brother-in-law. On May 17, 1928, this writ, and a copy of the present bill in equity, was served on them. The bill averred that at the time the brother-in-law took title to defendants' property, he knew of the agreement of exchange between plaintiffs and the other defendants and was cognizant of its terms. On June 26, 1928, all of the defendants answered, admitting *29
that the brother-in-law held title as trustee for the other defendants, and if plaintiffs were entitled to specific performance against them, relief should be granted against the brother-in-law also, who claimed "no interest whatever in said property." The answer also averred that plaintiffs did not tender and could not convey to defendants a fee simple title for their, plaintiffs', property, because it was subject to the easement of a right of way set forth in a deed previously made by plaintiffs to a third party. It is admitted that the easement existed; and it is no longer doubtful that it was an encumbrance preventing a conveyance "clear of all encumbrances," for which the agreement in suit provided: Nauman v. Treen Box Co.,
It thus appears that at the time fixed for settlement of the exchange, at the time plaintiffs tendered to defendants a deed, at the time they began the present proceedings, and at the time they ordered the case for trial on the issues raised by the bill and answer, they could not have complied with their agreement; that for more than seven months after the latest of these dates they held the release of the easement, unrecorded and without giving defendants any notice of its existence, putting the latter to the expense of counsel fees and costs in preparing for and trying the case, and also keeping the title to and right of possession of defendants' property, like Mahomet's coffin, suspended between heaven *30
and earth, possibly resulting in its falling into disrepair and rent being lost, as not uncommonly eventuate under such circumstances. Yet plaintiffs asked the chancellor, at the trial, to compel defendants, in equity, to take the title and fully comply with the agreement of exchange, upon plaintiffs recording the release and tendering a deed for their property. The chancellor advised a decree to that effect and the court in banc entered it. We know of no equitable principle on which to sustain this conclusion, and unfortunately neither the chancellor nor the court in banc have stated any. Their sole reliance appears to have been on Moss v. Hansen,
We have not overlooked the fact that the chancellor, probably not unjustifiably, inferred that defendants conveyed *31 their property to the brother-in-law for the purpose of defeating their agreement with plaintiffs. This fact, if it be one, perhaps would have been sufficient to discredit all their testimony, but the conclusion herein reached does not depend on anything they said or did, the case being decided here, as it should have been below, on the inequitable conduct of plaintiffs. Perhaps defendants' conduct, in the respect stated, would be sufficient reason for depriving them of equitable relief, but they are not seeking it. What they did, however, may properly be considered when determining who shall pay the costs.
The decree of the court below is reversed and plaintiffs' bill in equity is dismissed, but without costs to either party.