51 Pa. Super. 216 | Pa. Super. Ct. | 1912
Opinion by
. This is an appeal from the decree dismissing the petition of the administrator for the specific performance of a written contract for the sale of land by Martha G. Dunbar, the decedent, to A. B. Gaston, the respondent in the pro->
1. It is claimed that the writing was given as a mortgage, and in support of this contention we are referred to the following averment of the answer, which, as the answer was demurred to, is to be taken as admitted: “That the said Martha G. Dunbar, being about to become a mother, came to the respondent and begged of him to provide for her the funds necessary for her support and comfort during the time of her expected confinement, and offered in order to protect him for the money so advanced to agree to sell to him the property mentioned in the agreement, a copy of which is attached to the petition in this case. That your respondent has a life estate in said property and did not desire to make the purchase; but under the circumstances complied with her request and executed said agreement, it being understood between them that the said agreement was in fact a protection for the money thus advanced to her.” All this may be true, but it is utterly insufficient to convert the agreement into a mortgage, as will be made apparent by a brief reference to the terms of the instrument. The stipulated price was $1,000, which was to be paid in the following manner: The agreement was executed in May, 190.9, and by its terms the respondent was (1) to pay, during the month of May, certain debts, amounting to about $300, which the vendor owed to others; (2) to pay such hospital expenses as might accrue at the time of the vendor’s expected confinement in the near future; (3) to pay, in November, an amount in cash sufficient, with the above items, to make an aggregate of $500; and (4) to pay “the remaining half of the purchase money, amounting to $500,” on or before June 1, 1909. It is thus seen that the money the respondent agreed to pay for the expenses
2. It is argued that the death of Martha G. Dunbar, and the death a few days afterwards of her minor child, have so changed the conditions that it would be inequitable to enforce specific performance of the contract. Upon this subject the learned judge says: “If we grant the prayer of the petitioner and direct a specific performance of said contract upon the part of the respondent, the effect in the absence of any surviving issue of the said Martha G. Dunbar, is to convert said realty into personalty, to which the petitioner, husband of said decedent, and heir of the said child, would succeed absolutely. The refusal of the prayer of said petition would leave this part of Martha Dunbar’s estate in realty, in which the respondent already has a life estate, with the remainder vesting in the col
3. It is suggested that the petitioner was guilty of laches and the decree might have been refused on that alone. This position is not tenable. The petition was filed within a year and a half after the decedent’s death, and no circumstances are alleged from which it can be inferred that anyone suffered or could have suffered by this short delay.
It is to be observed further, that, while the learned court remitted the appellant to his remedies at law, it does not appear what adequate remedy at law there is, except the remedy which the statute gives.
We recognize the well-settled principle, that an application for specific performance is addressed'to the discretion of the court, and is not in all cases to be granted, even though there may be no defense at law. But this discretion is not an arbitrary discretion regulated solely by considerations of pure benevolence, but a sound judicial discretion, regulated by established principles of equity. And upon full consideration of the case we discover no equitable principle that ought to prevent the exercise of the power here.
The decree is reversed, the petition is reinstated, and the cause is remitted to the orphans’ court to be proceeded with to final decree of specific performance in accordance with the provisions of the statute in such case made and provided; the costs of this appeal to be paid by the appellee.