46 Pa. 96 | Pa. | 1863
This was an action of ejectment brought by Peter Erwin against Andrew Myers, to recover the possession of a lot of ground which the plaintiff by articles of agreement had covenanted to sell and convey to the defendant for the sum of $3700. The legal effect of the articles was to bind the plaintiff to give to the defendant a good title to the whole of the premises. From the evidence given on the trial, it appears that neither when the articles of agreement were made, nor when this ejectment was brought, nor at any time since, was the plaintiff seised of more than an undivided moiety of the premises, and consequently he could not make title to more than one-half of what he had agreed to convey. The defendant having paid a portion of the stipulated purchase-money, and having entered under the contract, this ejectment was brought to enforce its consummation or its rescission. On the first trial, it appearing that the plaintiff was the owner of but an undivided half of the property, and that the defendant had paid one full half of the stipulated purchase-money, a verdict and judgment were, under the instructions of the court, rendered for the defendant. The judgment was reversed in this court, and the case was remitted for a new trial. The instructions sent down were in substance, that the defendant having entered under the plaintiff, could not retain his possession for the reason that his vendor’s title is defective, and that he could not hold the half of the land which the plaintiff was able to assure to him, without paying the entire $3700 which he had agreed to pay for the whole property. The language of this court was that he had two courses open before him: “ In the first place, he had a right to insist upon a strict performance of the contract by the plaintiff, after strictly performing on his part. If he was prepared to prove that he had paid one-half of the purchase-money, he should have brought the other half into court for the use of the plaintiff, whenever the plaintiff should file such a deed as in the opinion of the judge would have been a compliance with his part of the agreement. Or, on the other hand, he might have taken advantage of the plaintiff’s inability to make a full title, and rescinded the contract, and suffered a verdict to pass in favour of the plaintiff, on condition the plaintiff should repay what purchase-money he had received, and compensate for any improvements the defendant had made.” When the case went back to the Common Pleas for the new trial, the second of the above-mentioned suggestions was adopted, and a verdict was rendered for the plaintiff on condition that he pay to the defendant the sum of $1635.29 on or before the 1st day of April 1863, with interest from the 20th day of December 1862. Upon this verdict judgment was entered, and the case has been a second time brought here. Several errors have been
But we think, in trying the case upon the principles upon which it was tried, the plaintiff should have been permitted to prove that after the defendant entered into possession of the property he tore down the smoke-stack, removed and sold fixtures, and damaged the property by bad usage. If, in the settlement of the equities between the parties, the plaintiff was responsible for betterments, as was said when the case was here before, the defendant must be for waste. If the contract is to be rescinded, both parties must be reinstated to their original position, and this cannot be done if the plaintiff must take back the property denuded of its improvements, yet without compensation.
It is the fifth assignment of error, however, which raises the most important question in the case, and which has led us to review the decision made when the first writ of error was in this court. The suggestions then made of the means which the defendant had to protect himself, were dictated by a desire to secure to both parties full and proper justice. It is so obviously unjust that a vendor who had covenanted to make a perfect title, but who is unable to do so, after having obtained most of the purchase-money, should be permitted to eject the vendee from the property sold, and turn him over to an action at law to recover the money paid, an action which the insolvency of the vendor might render fruitless in results, that an effort was made to give to the vendee a better security. In such a case the vendor has no equity. His rights, whatever they are, are all at law. And even at law, in a different form of action, he cannot recover the unpaid portion of the stipulated purchase-money. His own covenant has been broken, and he is in default, whether he sues
If then Myers, the defendant, chose to set up an equity growing out of the articles of agreement, if on the trial of the ejectment he elected to occupy the position of a vendee praying for specific performance of the agreement, so far as the plaintiff could perform, and for compensation for the deficiency, and if the defect of title of the plaintiff was an undivided half, why was not the defendant’s equity complete on his payment of one-half the stipulated price for the whole ? Why was he not entitled to a verdict enforcing his equity ? Surely, the defect was capable of accurate measurement. The plaintiff could not assert that an undivided half was worth more than one-half of what the whole property was worth. If the defendant must turn out of possession or pay the price which he agreed to pay for a good title to the whole property, he is denied the equity, undoubtedly his, to enforce the performance of the vendor’s contract pro tanto, i. e., so far as it is within the vendor’s power to perform. And this without any default of his. Then a vendor, through the breach of his own covenant, extinguishes an equitable right of his vendee, or compels the payment of a sum of money to which, not even at law, much less in equity, is he entitled. Surely this cannot be. Even if a tenant enter under an agreement with his landlord for a lease, equity will restrain the latter from proceeding by ejectment against him : 1 Eden on Injunctions 49. If the equitable rights of a vendee are such as have been described, if he may insist upon the specific execution of the contract, so far as the vendor can perform, and is entitled to abatement out of the purchase-money for deficiency, it is impossible to sec why he must surrender the possession or pay the whole purchase-money. The reasons which forbid a tenant to deny the title of his landlord are not applicable to his case. The vendee has an equitable right to the possession of the land; a right which a chancellor will secure to him. It would be passing strange, if a vendor, able to convey only one-half of the subject-matter of his contract, who would bo compelled to convey that and also give possession on payment of half the purchase-money of the whole, should be permitted to refuse doing either and allowed to recover possession on default of the payment of the entire price, because he had accorded to his vendee a part of the rights which equity would compel him to give in solido. In no sense would such a ruling secure the equity of the purchaser. This is well illustrated by
It is further said to be the settled law of this state, that a vendee in possession under articles of agreement for the purchase of land, against whom an ejectment is brought to compel the payment of purchase-money, is not permitted to set up a defective title in his vendor, or an outstanding title in a third person, to defeat the plaintiff’s recovery, and for this doctrine we are referred to Congregation v. Miles, 4 Watts 146. I do not understand that case to have decided this as an universal principle, or that it goes any further than to rule that a party cannot rescind the contract and still retain the possession taken under it. If it does, then it is in conflict with the rule and practice of every bill for a specific performance, for in every such case the title of the vendor is subject to inquiry, and is usually referred to a master for investigation. True, where a vendee in possession asserts no equity, offers to pay for no part of the property, and avers the contract to be null, because not complied with by the vendor, he may not set up defective titles or outstanding titles to protect his possession. That would be using the contract, while denying it. It is a very different thing from seeking to enforce the contract, so far as the vendor can perform it. In Hersey v. Turbut, 3 Casey 424, it was said that wherever the defendant enters into a possession of land under a contract with the plaintiff for the purchase of it, he will not be permitted to set up an independent title to protect a hostile possession. That may be when he repudiates the contract of purchase. In . that case the contract had been executed, and the suit was a
But without prosecuting this subject further, we will add only that, in our opinion, there was no error in refusing to affirm the plaintiff’s second point.
In thus reviewing the case we are brought to the following conclusions:—
1. The equities of the parties cannot be worked out by allowing a verdict for the plaintiff, to be released on payment by the defendant of the purchase-money agreed to be paid for a good title to the whole property, or.such part of it as remains unpaid.
2. If the plaintiff can make title to no more than an undivided half, as appears to be the case, the defendant may elect to take that half, and if he has paid one-half the purchase-money with interest on that half, he is entitled to a general verdict and judgment. If he has paid less than half, the plaintiff is entitled to a verdict, to be released on the payment of the unpaid part of the one-half. A deed from the plaintiff for what he is able to convey is already on file.
3. If the defendant elects to rescind the contract, as is his right, the verdict should be for the plaintiff, on condition that he repay by a stipulated time whatever purchase-money has been paid to him, and make compensation for the defendant’s improvements. From this, however, the plaintiff is entitled to recoup the damages caused to the property, by any waste the defendant may have committed.
If the defendant elects to seek specific execution pro tanto, no question will arise respecting improvements or waste.
The judgment is reversed, and a venire de novo awarded.