Garver v. McNulty

39 Pa. 473 | Pa. | 1861

The opinion of the court was delivered,

by Thompson, J.

1. We need not discuss the first three assignments of error. We think the law of the learned judge there complained of, was entirely accurate, and adequate to that part of the case. More than seven years after the survey was made, and while unreturned, Culbertson entered on the land in controversy as a settler. The failure to return the survey from 1794 to 1832, left the land open to new appropriation, by settlement or otherwise. There are numerous decisions to this effect, which need not be cited. Nor was this principle changed by the fact that the warrant belonged to Nicholson. The state lien depended on Nicholson’s title. If he acquired none, the state could have no lien. This was equally so, whether he failed to locate his warrant or to return the survey.

2. The fourth assignment requires more consideration. Was the writing of the 7th July 1840, between Culbertson and wife of the one part, and Charles Wharton, Sr., by his attorney, of the other, an executed ox an executory contract on part of the former ? It will scarcely be doubted but that such may be the case in regard to one party, and not as to the other: the effect of which would in general, in case of a sale of real estate, be to turn the vendor round to his covenants to enforce performance of anything remaining to be done by the grantee. He could not use his title to enforce conditions, for that would be gone by the conveyance. This is plain.

The instrument of writing here claimed to be a conveyance by the defendants, recites possession of the land by Culbertson, a claim by Wharton, and a lawsuit between him and Culbertson’s tenant, Lindsay; and that the “ said Alex. Culbertson is desirous of settling all controversy in relation to the same,” and rescinding his agreement with Lindsay. The “ said Alexander Culbertson,” the instrument proceeds to say, “ doth covenant and agree, that, in consideration of himself and Mary his wife being supported comfortably during their natural lifetimes, by the said Charles Wharton, which said Charles Wharton is also to furnish the said Alexander Culbertson with a house and garden in said township, on another tract of land, that the said Alexander Culbertson will immediately relinquish the possession of said tract of land to the said Charles Wharton, Sr., and the said Charles Wharton, Jr., on behalf of the said Charles Wharton, Sr., doth covenant to provide for the said Alexander Culbertson and Mary, said house and garden, and to furnish them the means of living comfortably during their natural lives, in consideration whereof and of the sum of one dollar to her and the said Alexander Culbertson in hand paid, the said Alexander Culbertson and Mary his wife have granted, bargained and sold, released and con*484firmed, and by these presents do grant, bargain and sell, release and confirm nnto the said Charles Wharton, Sr., his heirs and assigns, all the right, title, and claim of them, the said Alexander Culbertson and Mary and their heirs, to the said described tract of land. In testimony,” &c.

I have quoted this instrument thus at large, to show, at one view, the consideration, the terms of present grant, and the entire absence, by expression or implication, of any agreement or necessity for further assurance. The consideration was the covenants for maintenance; and to close the instrument, as a conveyance, the nominal consideration of one dollar in hand paid was acknowledged. If the instrument was delivered, as it seems to have been, it is difficult to see why its operation is not, so far as the grantors are concerned, to be that of a complete conveyance. That it was signed by both parties, in no particular changes its effect as a conveyance. It was so done, doubtless, to afford a remedy on the covenants for maintenance, which otherwise could not have been enforced by action of covenant. And for the same reason was it deposited or delivered to a third party for safe keeping. By this means it would be kept within the convenient reach of the grantors who were interested in these covenants. This circumstance did not give it the character of an escrow. The only condition precedent to be performed by the grantee was performed, namely, the furnishing a house and garden for the grantees at another place; and they surrendered the possession of the premises. The grantee, during the lifetime of Culbertson, complied fully with his covenants, as we would learn from the testimony; and the defect of compliance seems to have occurred in regard to his widow, after her marriage to Leonard perhaps. But on the point under consideration, this could make no difference; for if the instrument was a present conveyance, it passed the grantor’s title to the land, and henceforth the covenants in their favour were their only security.

In Grey v. Packer, 4 W. & S. 18, the doctrine on the point under consideration is well stated by Sergeant, J. He says:— “ In all the cases cited where the instrument has been construed executory, although some of the words imported a present grant, yet there were other clauses, by which something further was to be done, or which showed it to be the design of the parties, from the tenor of the whole instrument, that it was to be merely executory.” Williams v. Bently, 3 Casey 294, turned on the construction given to the article that future assurance was to be made. So also did the case of Ogden v. Brown, 9 Casey 247. As a general proposition, this intention appearing, will control words of present grant, and this upon the principle that the intention of the parties must interpret their agreements. In none *485of the cases are the words “articles of agreement,” at the beginning of the instrument, held to be of controlling effect in indicating an executory contract. They yield to the force of the operative words of the instrument and the intent of the parties afterwards expressed. The substance of the contract, not its mere form, is to control. On this point in the case, we are brought to the conclusion that the contract of sale was executed on the part of Culbertson and wife, and the covenants on the part of the grantee were independent and executory, and that there was error in construing the instrument to be an executory agreement on part of the vendors, Culbertson and wife, as well as on Wharton’s part.

Under this view' of the transaction, the law will not sanction the position insisted on by the plaintiffs below, that there was a parol rescission of the conveyance. Under the circumstances of this case, the possession having been delivered, and long enjoyed by the vendee, it could not be done, so as to reinvest the grantors with title, without a palpable violation of the Statute of Frauds and Perjuries: a reconveyance, or some substitute for it, would be required to have the effect. No doubt but that unexecuted articles for the sale and purchase of land may be rescinded by parol, so that in equity no specific execution of them could be enforced, or a recovery be had in ejectment: Boyce v. McCullough, 3 W. & S. 432; Dayton v. Newman, 7 Harris 198. But when the title has passed, a different rule necessarily exists. All the court charged, therefore, predicated of the construction that the writing between the parties, so far as the grantors were concerned, was executory, was in our view of the case erroneous; and this disposes also of the fifth and sixth assignments of error.

For the reasons thus given, the judgment must be reversed.

Judgment reversed, and a venire de novo awarded.