67 Pa. 217 | Pa. | 1871
The opinion of the court was delivered,
The 1st assignment of error is to the admission in evidence of the deed of Lindsay and wife to the defendant, dated March 3d 1866, and the 7th and 8th errors to its effect when admitted. The objection was to the insufficiency of the description of the premises conveyed. “ All that certain tract or parcel of land situate in Wood county, West Virginia, located on Little Stillwell creek, between three and four miles from the Baltimore and Ohio Railroad, on the National turnpike.” The abutters on the west and north are then given, but those on the east and south are left in blank; and it then adds, “ and contains 180 acres, more or less, and now occupied by Jacob Buzzard as tenant.” Primff facie such a description was certain enough, and there was no error, therefore, in the admission of the deed. It
The 3d error assigned is to the admission of a part of the evidence of Jacob Buzzard, in which he was allowed to testify that he had received an offer for the purchase of the land in controversy, at the price of $14,000, from a responsible party, who purchased other land in the vicinity. This evidence was certainly inadmissible. If it showed the opinion of the person who made the offer, it was mere hearsay.
If the value of the land or other thing could be proved in this way, nothing would be easier than to manufacture abundance of such testimony.
The 4th, 5th, 6th, 10th, 11th and 12th assignments may be considered together. They are to answers to points, and to the charge of the learned judge below, all involving substantially the same question. One defence set up was that the plaintiff had been guilty of fraudulent misrepresentations as to the character and value of the land which was the subject-matter of the contract of sale. There was evidence that Glen. Negley, one of the defendants, after the contract had been made and signed, as agent, and on behalf of the others, had visited and examined the property. The learned judge held, and so instructed the jury, that if they found this to be so, and that Glen. Negley became acquainted, or had the opportunity of becoming acquainted with the true state of the facts, the defendants were bound to give notice to the plaintiff, within a reasonable time, of their rescission of the contract, and if they waited until after they had attempted and failed to get up an oil company to take the land, they could not avail themselves of this defence. It was decided, indeed, in Duncan v. McCullough, 4 S. & R. 487, that when a contract is in itself fraudulent, it is void, and cannot be confirmed by any subsequent declarations or acts by which its fairness is acknowledged. “ Where there has been actual and positive fraud, or the adverse party has acted malá. fide, there can be no such thing as a confirmation; what was once a fraud will always he so. The reason of the distinction is, that a contract infected with that kind of fraud, which must be proved and not presumed from the circumstances of the parties, is not merely voidable but void;
Of course where a contract is void on the ground of public policy, or against a statute, as the usury law, there is every reason to hold the confirmation affected with the original taint: Shelton v. Marshall, 16 Texas 344. Certain it is, that the doctrine that a contract, void on account of fraud practised on the party,
“Ratification,” says Chief Justice Lowrie, “is in general the adoption of a previously formed contract, notwithstanding a view that rendered it relatively void; and by the very nature of the act of ratification, confirmation or affirmance (all these terms are in use to express the same thing), the party confirming becomes a party to the contract, he that was not bound, becomes bound by it, and entitled to all the proper benefits of it; he accepts the consideration of the contract as a sufficient consideration for adopting it, and usually this is quite enough to support the ratification. A mere ratification cannot, of course, correct any defect in the terms of the contract. If it is in its very terms invalid for want of consideration or for any other defect, a mere ratification can add nothing to its binding force.” These principles are only a recurrence to those advanced by Lord Chancellor Hardwicke in Chesterfield v. Janssen, 2 Ves. 125, 1 Atk. 354, the result of which was, that if the original contract be illegal or usurious, no subsequent agreement or confirmation of the party can give it validity. But if it be merely against conscience, then, if the party, being fully informed of all the circumstances of it, and of the objections to it, in his own words, “with his eyes open,” voluntarily confirms it, he thereby bars himself of that relief, which he might otherwise have had in equity: 1 Fonblanque’s Eq. b. 1, ch. 2, s. 13, n. Upon the principles thus established we discover no error in the rulings of the learned judge below upon this subject.
The 9th assignment of error remains to be examined. It presents the question, whether, under the pleadings, it was incumbent on the plaintiff to prove that he had a clear, indisputable title in fee simple to the land which he contracted to sell the defendants. The form of action was debt, and not covenant, as is more usual in such cases; but it can make no difference what is the
I do not propose therefore to discuss this case, nor to inquire whether under the general issue of nil debet, or never indebted in this action, it was incumbent on the plaintiff to meet this proof. That under such a traverse as was put in here, it was so, is abundantly clear. In Dearth v. Williamson, 2 S. & R. 498, which was a covenant to make a lawful deed of conveyance, Chief Justice Tilghman said, “ The plaintiff was to make a lawful deed of conveyance, for which he was to receive the full value of the land. It does not appear that the plaintiff had any title whatever.” In Heron v. Hoffner, 3 Rawle 400, Mr. Justice Kennedy says: “ I apprehend that the vendor when he proceeds to recover the purchase-money, ought at least to show that he had it in his power to make a good title, because he will be bound to make it upon payment of the purchase-money. It would be gross injustice were it otherwise.” Again: In Smith v. Webster, 2 Watts, the same learned judge said: “ This action being carried on for compelling payment of the purchase-money, they (the plaintiffs) ought to have shown that they had it in their power to make an indefeasible title in fee for the land.” How can a defendant show defects in the plaintiff’s title unless it is produced to him ? It is not enough to say that he may resort to the records. He must have some clue to trace it there. Besides, there are many necessary facts as to which the records will give him no information, such as descents under the intestate laws, the death of tenants for life, and others of a similar kind. It may not be necessary for him to produce his deeds or furnish an abstract of his title before commencing his action, but surely the onus is upon him to prove his right to the purchase-money, which it is clear that he has not, unless he can convey a perfectly good title, or the vendee has specially agreed to accept only such title as he has. If this is not so, the vendee may be compelled
We think, therefore, that the learned judge below committed an error in his answer to the defendant’s 3d point, and that the plaintiff having failed to show any title to the land which he had contracted to convey, he was not entitled to recover.
Judgment reversed, and a venire facias de novo awarded.