75 Pa. 483 | Pa. | 1874
The opinion of the court was delivered, May 11th 1874, by
The clear and methodical report of the master saves us the necessity of discussing many of the questions raised by the numerous assignments of error. These appeals are from the same decree, and we shall notice a few leading points which will govern the decision. The principal question arises upon the agreement between Henry W. May and Philip G. Eessler, dated September 11th 1863. That this paper is a mortgage of May’s equitable interest in the land is very clear. Its terms are express. After- reciting that May held the land by
What interest did pass ? This is equally clear. It would be sufficient on this point to rely on the report of the master confirmed by the court, the testimony being uncontradicted. But let us turn to the evidence and examine it. That Mackey and Carskaddon had a good title is not questioned. The legal title was in William Fearon, in trust for them, but he executed this trust by his conveyance of the 4th of January 1865. Mackey testifies that he gave Carskaddon full authority to treat for the sale of the land with May, and that he transacted the business. Carskaddon testifies that Mackey and he had a contract in writing with H. W. May for the sale of this tract of land, that the nature of their contract was that they agreed to convey the land in question to May, upon certain payments, to be made by a given time or times, the purchase-money, he thinks, was $1100. Then the legal character of the writing was perfectly clear. It was an agreement of bargain and sale, making time of essence in the payment. But making time of essence in the performance of the contract does not change the nature of the agreement itself. So long as the time had not expired the agreement to convey was legally and fully binding. Therefore, calling it a refusal, or an option, cannot change its true character. May had a right to call for a conveyance on payment according to its terms. But even if it were an option contract it was binding and enforceable, if the option be exercised according to its terms: Kerr v. Day, 2 Harris 112; Corson v. Mulvany, 13 Wright 88; Siter, James & Co.’s Appeal, 2 Casey 180 ; Shollenberger v. Brinton, 2 P. F. Smith 98 ; Lowry v. Mehaffy, 10 Watts 389; McFarson’s Appeal, 1 Jones 503. But the case does not rest on the character of the writing alone ; for the parties carried it into actual execution. Carskaddon testifiés: “We considered the land as May’s if he complied with the con
The next matter to be noticed is the saw-log contract between May and Fessler of even date, viz.: September 11th 1863, set up by Eessler in his defence. By it May agreed to cut, sell and deliver to Eessler one million or more feet (board measure) of white pine saw-logs, at $5.25 per thousand feet, in the time and manner set forth in it, and Eessler agreed to pay to May, in consideration of this $500, within twelve days from the date, and the remainder in certain instalments. The defence turns upon the interpretation
The next matter to be noticed is the relation of Harris to the case. On this point it is sufficient to take Harris’s own answer and his testimony, without entering into the disputed question of Perry’s agency and of actual notice. According to these, when the plaintiff’s bill was served on Harris, he had no title except an unexecuted bargain on which he had paid one instalment of $1000. The remaining one thousand dollars he did not pay until long afterward. The bill was filed May 6th 1867, and served on Harris November 23d 1867, while the second thousand dollars was not paid until October-1869. Harris relied wholly on his agreement of September 14th 1866, and set up no deed either in his answer or his testimony. Indeed, the deed is not referred to in any part of the case. He was, therefore, not such a bond fide purchaser without notice as would be protected, except to the extent of the $1000 paid before service of the bill: Youst v. Martin, 3 S. & R. 423 ; Union Canal Co. v. Young, 1 Wharton 410; Beck v. Ulrich, 1 Harris 636 ; Juvenal v. Jackson, 2 Id. 524; Coxe v. Sartwell, 9 Id. 488; Henry v. Raiman, 1 Casey 360; 2 Sugden’s Yen. & Pow., 8 Am. ed. 523. This being the status of Harris when the bill was filed, the legal title being still in Fessler, it was unnecessary to pray for a conveyance from Harris to May. The prayer for an injunction against Harris and his servants to stay waste by cutting timber was the only prayer then necessary. Had Harris set up a deed by supplemental answer, May might have amended under the Act of 4th May 1864, 1 Bright. Dig. 601, pi. 72 ; Danzeisin’s Appeal, supra. It was therefore an error to dismiss the plaintiff’s bill wholly as to Harris. The learned judge had probably not noticed the state of the case when the bill was filed, and Harris’s omission to set forth any title in himself. But in view of the report of the master, for compensation only against Harris, a prayer for a conveyance is immaterial. In strictness a reconveyance might have been decreed by making Harris’s grantees, Wells and Page, parties. A bill in equity is Us pendens, of which every one is bound to take notice. This is settled in the well-considered case of Diamond v. Lawrence County, 1 Wright 353, in which the doctrine is fully discussed and the authorities cited by Woodward, J. Page and Wells were, therefore, not innocent pur
Upon the whole case the appeal of Philip Gr. Fessler is dismissed, with costs of appeal to Henry W. May; and in the appeal of Henry W. May, we reverse the decree of the court below dismissing the plaintiff’s bill as to N. 0. Harris, and adopt the report of the master and the decree reported by him, which is hereby confirmed, except as to the time of payment, which, in the case of Philip Gr. Fessler, is fixed at sixty days, and in the case of N. C. Harris at four months from the time of filing this decree. The costs of this appeal to be paid by the defendant P. Gr. Fessler, the costs in the court below to be paid as reported by the master.