48 Pa. 73 | Pa. | 1864
The opinion of the court was delivered, by
— That the title to the land, for the purchase-money of which the bond was given, has failed to the extent of two third parts thereof, is beyond controversy. The evidence given at the trial in the court below shows it, and the court so instructed the jury. The plaintiff therefore was not entitled to
It was upon this question that the case turned in the court below, and the errors assigned relate mainly to the instruction given to the jury respecting it. The land had. belonged to Peter Collins and James Ross. On the 7th of October 1841 they sold it by articles of agreement to Barnabas Farrell, the father of the plaintiff, for the sum of $875, of which he paid $160, the first instalment, in full, and. $8 on account of the second instalment. Shortly afterwards he died leaving three children, of whom the plaintiff Thomas Farrell was one. After his death his son Thomas paid the remainder of the purchase-money, and took a deed to himself from Collins and Ross, giving to them a bond conditioned upon his procurement of a release to them by his two sisters. He afterwards purchased a tax title under a sale made in 1846. Having thus a perfect legal title, subject however to a trust as to two undivided third parts for his sisters, in May 1854 he entered into an article of agreement, by which he covenanted to “well and sufficiently grant, convey, and assure unto Gilbert Lloyd (the defendant), his heirs and assigns, in fee simple, clear of all encumbrances, all the tract of land, in consideration of which the vendee covenanted to pay the sum of $6000 in instalments, as follows : $1000 on the 1st of July 1854, $2000 on the 1st day of July 1855, $2000 on the 1st day of July 1856, and $1000 on the 1st day of July 1857, the payments to be secured by bond and mortgage. On the 1st day of July 1854, in. pursuance of this article, Thomas Farrell conveyed the land to the defendant, in fee simple, describing it as the same as that which had belonged to Peter Collins and James Ross, and which they had conveyed as above described. The deed contained only a covenant of special warranty against the grantor, his heirs and assigns, in addition to the covenant implied in the words “ grant, bargain, and sell.” On the day of the date of the deed, Lloyd gave his bonds for the unpaid purchase-money, of which that now in litigation is one.
There is nothing either in the agreement or in the deed to show that the purchaser undertook any risk of title, or that he bargained for anything less than a perfect title. The contrary is expressly declared in the article of agreement, and such is the legal effect of the deed. ' Nor is it pretended that he had any knowledge of defect of title in Thomas Farrell his grantor. He was not informed of the trust in favour of the grantor’s sisters, nor of anything that should have put him upon inquiry. He did not take a deed for the right, title, and interest of his grantor, but a deed for the land itself, with all the covenants to which he
To show, however, that his conveyance was of no more than his own right, and that the defendant bought at his own risk, the plaintiff called, a witness, who testified that he was present at the signing of the agreement and at the delivery of the deed; that it was the understanding that Mr. Lloyd was to take whatever title Farrell had, at his own risk; that he did not undertake to give the language of the parties; that the conversation was just before the signing of the article; that there was nothing said about the rights or claims of the other heirs, not a word about two-thirds of the land belonging to Farrell’s two sisters; that the parties came into his office only to sign the agreement; that he did not undertake to give Mr. Lloyd’s words, or what Mr. Farrell said, and that the way he had stated it before was, that Lloyd was to take just such title as Farrell had, without guaranty of any kind. The witness said nothing of what took place when the deed was delivered, or after the article of agreement was made. This testimony the court submitted to the jury in connection with the agreement, and the fact that the deed was after-wards taken with only a special warranty, as evidence from which they might find whether Lloyd had agreed to take the land at his own risk, and thereby precluded himself from setting up a defect of title as a defence to the plaintiff’s claim on the bonds given some months afterwards for the purchase-money. The agreement expressly negatived such an assumption, and the fact that the deed contained no more than a covenant of special warranty was no evidence of it, for, as has been shown, such a covenant is all that the purchaser of a perfect title can claim. This fact should not, therefore, have been presented to the jury as tending to prove an undertaking by the grantee to run the hazard of the title. Nothing then remains but the testimony of the one witness, and this the court was requested to withdraw from the jury as contradictory to the .written agreement, and insufficient in itself. We think the request should have been granted. At best, the testimony was indefinite. We are not even informed whose understanding it was of which the witness spoke. Was it his own, or that of the parties ? Was it the witness’s construction of the written agreement, or of the conversation of Farrell and Lloyd ? If, as is probable, the witness referred to the understanding of the parties, how did he gather it, from their negotiation or their written contract ? And, so far
Still more apparent it is, that the case should not thus have been submitted to the jury, when it is considered that the real consideration of the defendant’s bond was not the agreement, but the deed given in July afterwards. That, standing by itself, purports to assume a title. It is a grant of the land, not of an uncertain right in the land; and there is nothing to show that the grantor did not intend what he expressed by his deed. Even if the written agreement could be reformed, and made to express its exact opposite by parol evidence of what the parties said before its execution, such evidence can have no bearing upon the deed. We hold, therefore, that the court erred in submitting without legal evidence to the jury, the question whether Lloyd took the title to the land at his own risk.
The charge of the learned president of the Common Pleas was not quite accurate in another particular. He was requested to-instruct the jury, that the act of Thomas Farrell, in taking the title in his own name from Collins and Ross, and selling to the defendant without disclosing the state of the title, was proof of fraud. The instruction asked for was refused, though the court did say after the refusal, that the misrepresentation or concealment of a material fact would be fraudulent, and would relieve a party from an agreement to run the risk of the title. The inevitable effect of such instruction upon the minds of the jury must have been to create the impression, that though concealment of a material fact would have been fraudulent, yet concealing the fact that Farrell’s two sisters had an equitable title to two-thirds of the land sold was not material. This is doubtless not what the court meant, but it is what the jury probably understood. The court intended to say that if Farrell thought he had a good title, good faith did not require him to state to his vendee facts connected with it which he deemed of no importance. But Farrell knew that the land had been purchased by his father from Collins and Ross, and that much of the purchase-money had been paid by him. When he took the title, he agreed to. procure releases of the rights of his sisters. That they had rights he must he presumed to have known. That, with such knowledge concealed in his own bosom, he could have bound his ignorant vendee by an agreement to assume all the risk of a title, would be grossly inequitable. It is idle to say that any court of equity would enforce such a contract. Even in cases of attempted rescission of contracts, it is not indispensable to
There is nothing else in this record that requires particular notice. We do not perceive that the testimony of James Cooper in relation to the profits of the land had any legitimate bearing on the case, and we concur in opinion with the court below, that the defect in the plaintiff’s title, such as it was, was not covered by the statutory covenant contained in the words “ grant, bargain, and sell” of the deed, or by the express covenant of special warranty.
The judgment is reversed, and a venire de novo awarded.
