6 Md. 142 | Md. | 1854
Lead Opinion
delivered the opinion of this court.
In order to settle the substantial merits of this case, we do not deem it necessary to notice several of the questions presented in the course of argument.
The agreement for the sale of the land, which forms the basis of the controversy, was as follows:
“It is this 23rd day of September 1845, agreed, between Walter Wood, of Charles county, and John H. Key, H. G. Hayden and H. G. Garne.r, of St. Mary’s county, all of the State of Maryland, that t(he said Walter Wood agrees to purchase the land bought at sheriff’s sale, sold as the property of G. W. Moreland, by the said J. H. Key, H. G. Hayden and H. G. Garner, on the following terms, to wit: the said Wood agrees to pay the sum of $1750 for the said land, in the following payments, to wit: one-third on the 1st day of January next, before he takes possession, one-third in twelve months thereafter, and the other third in two years from the 1st day of January next, with interest on the deferred payment. Anticipating some dispute, it is agreed by each of the parties, that if the sajd John H. Key, H. G. Hayden and H. G. Garner, should ultimately lose the said land, then they are to return to the said Wood any money he may have paid, with the interest thereon.; ajad the said Wood agrees to give up the said land and to pay a fair and reasonable rent for the same to the said J. H. Key, H. G- Hayden and H. G. Garner. Witness our hands.” — Signed, “John H. Key, H. G. Hayden, H. G. Garner, Walter Wood.”
Before this agreement was executed, to wit, in August 1845, a motion had been made and overruled in the county court, to set aside the sheriff’s sale, under which the vendors had acquired their title. From the ruling of the court in refusing to vacate .the sheriff’s sale an appeal had been taken, and was then pending. At the June term 1846 of the Court of Appeals, the judgment of the county court was reversed, the sale vacated and the cause remanded. In August following a vendi. exponas was issued, under which the. same parties repurchased the laird.
These, it strikes us, are the material facts in this case, and upon their proper interpretation the controversy must depend.
It is clear to our minds that the purpose of the parties to this contract was, the one to sell, and the other to purchase, such title or interest of Moreland, to the land in question, as the sheriff could pass by virtue of the judicial process under which he was proceeding to sell. That title or interest would have been the same, whether it had passed under the first sale under the fieri facias, or under the subsequent sale by virtue of the vendi. exponas. Key and the others having been the purchasers at both sales, were in a condition to make the title as contemplated by the agreement, and it was immaterial, as we have shown, whether it resulted under the ft. fa. or vendi.
We do not pretend to say that by force of the agreement Key, Garner and Hayden were bound, in the event of the first sale having been set aside, to repurchase the land, in order that they might convey it to Wood. Many contingencies may have arisen after th,e setting aside of the sale, such as payment of the judgment by the debtor, and the like, which might have made it impossible for them to have done so; and •we have no hesitation in saying that had either party pleased to regard their obligations under the contract at an end upon the sale’s being vacated, they might have done so, and thus virtually have rescinded the contract. This was manifestly the purpose of the parties when they provided for the result of the anticipated dispute, and for the return of the first payment of the purchase money, by the vendors in the contract, if they should ultimately lose the land. But did either party avail themselves of this privilege? The appellant, and Hayden and Garner, repurchased the land, and there is no evidence to show that in the lifetime of Wood they in any way treated
We cannot suppose, as was contended by the appellee’s counsel, that the true meaning of the contracting parties was, that upon the vacation of the first sale the contract was thereby to be ipso facto void. It was voidable only at the option of either party upon the happening of the contingency, or it was equally within their power to reaffirm it. Wood, we think, pursued the latter course, and it is now too late for those who represent him to seek to avoid the consequences of that act. 2 Sugden on Vendors, 7, 8. 7 Greenlf. Rep., 70, Brinley vs. Tibbets.
The remaining point for us to determine is, have the questions to which we have adverted been properly presented on this appeal? The appellant’s counsel asked instructions which were denied, and in lieu thereof another was given by the court. Thereupon, in the language of the record, “the defendant excepted.” It is urged by the appellee’s counsel, that this exception goes only to the instruction given, and does not embrace those rejected by the court. This precise point we think need not be decided on this appeal. Although the propositions embraced in a rejected prayer may be correct, still the mere rejection of the prayer would not, of itself, constitute such an error, as to authorise the reversal of the judgment, provided an instruction was actually /given by the court which embraced substantially the same views; and we have no hesitation in saying, in this connection, that we approve of the practice by which the courts instruct the jury upon the law of the case, upon the whole testimony, without reference to the peculiar form or structure of prayers which counsel may think proper to submit. The instruction given by the court in this instance, was in substance the converse of that asked for by the appellant, and may be regarded as virtually
We think the court was in error in submitting this question to the jury, because there was no testimony legally sufficient to establish the fact. The mer'e unsupported circumstance that the appellant, without the authority or knowledge of his co-purchasers, and after the death of Wood, .undertook to rent the land, cannot be regarded as evidence,-from which might be rationally deduced a mutual rescisión of the contract in the lifetime of Wood.
Judgment reversed and procedendo awarded.
Dissenting Opinion
delivered the following dissenting opinion:
I am of opinion that this judgment should be affirmed. The question presented by the third exception relates to the legal- sufficiency of the evidence offered to prove that the contract between Wood, Key and others, had'been rescinded. Without expressing any opinion as to the' interpretation of that instrument, I think there was evidence 'before the jury on that point sufficient in law to warrant them in finding for the plaintiff below.
