9 Watts 496 | Pa. | 1840
The opinion of the court was delivered by
This is an action of ejectment brought by Thomas S. Ridgway, the defendant in error, as plaintiff in the court below, against Jacob W. Seitzinger, Samuel P. Wetherill, Charles Wetherill, William P. Wetherill, Rebecca Gumbes, and Philip Deal, to recover the possession of a lot of land containing ninety-nine acres and eighty perches,which he claimed under an agreement made with Conrad Keim, owner at the time of the land, for the purchase of it. The defendants below claimed the land by a purchase and deed of conveyance from Keim, made subsequently to the agreement under which the plaintiff claimed. The agreement between Ridgway and Keim was reduced to writing, and executed by each under his hand and seal. It was purely of an executory character; the purchase-money was to be paid by Ridgway in sixty days from its date, when he was to be invested by Keim with the legal title to the land. This action, after a tender made by Ridgway, as was alleged, of the purchase-money to Keim, was instituted to recover possession of the land, and thus, in effect, to obtain a specific performance of the contract made for the purchase of it. On the trial of the cause in the court below, a bill of exceptions was taken by the defendant’s counsel to the opinion of the court, rejecting the answers of witnesses to interrogatories propounded by them; several questions of law were also raised, and submitted to the court
Having no court of chancery in this state, and it being conceived that justice could not be administered in all cases without recourse to those principles which have been adopted and maintained in courts of equity ip England, with a view to mitigate the extreme rigour of the common law in some instances, and again in others to prevent a failure of justice, our courts of law, with a like view, adopted in similar cases the principles which had governed courts of equity in England, so far as it was found practicable through the medium of common law forms of action and the intervention of a jury to do so. Equitable principles have thus become, and are regarded in Pennsylvania as part of the common law of the state. See Pollard v. Shaffer, 1 Dall. 211, 213, 214; Wicoff v. Coxe, 1 Yeates 358; Doorone v. Kelly, 1 Dall. 144; Wharton v. Morris, 1 Dall. 126: Stansbury v. Marks, A Dall. 130; Murray v. Williamson, 3 Binn. 135; Jordan v. Cooper, 3 Serg. & Rawle 578; Ebert v. Wood, 1 Binn. 217; Minsker v. Morrison, 2 Yeates 346. It has also been held that courts in Pennsylvania will sjjll go farther, when the common law forms are inadequate to reach the equity of the case, and permit a declaration or a plea, as the case may require, to be framed, so as to suit the circumstances of it. Jordan v. Cooper, 3 Serg. & Rawle 578. And accordingly, in some instances it has been done. Pollard v. Shaffer, 1 Dall. 214; Long v. Keppele, 1 Binn. 579; Murray v. Williamson, 3 Binn. 135. So the courts of Pennsylvania have adopted the chancery principle of considering that as already done which a court of chancery would decree to be done; and upon this principle have allowed the vendee of land, under an executory contract in writing for the purchase of the same, to recover, in ejectment, the possession of it from the vendor, who was bound, according to the tenor of his agreement, to have made a deed of conveyance, investing the vendee with the legal title thereto. Hawn v. Norris, 4 Binn. 77; Vincent v. Huff, 4 Serg. & Rawle 301; Minsker v. Robinson, 2 Yeates 344; Marlin v. Willink, 7 Serg. & Rawle 298, 299. Thus ejectment has been substituted in this state for a bill in chancery, where a specific performance of
But this subject may be still further illustrated. It has been said that ejectment will lie in this state to enforce the payment of money charged upon land, and that such actions have been resorted to and maintained for that purpose, where no other remedy could be had. Galbraith v. Fenton, 3 Serg. & Rawle 361; Gause v. Wiley, 4 Serg. & Rawle 528. Now suppose an ejectment is instituted, with a view to compel the payment of money charged upon the land, for which the action is brought, that the defendant alleges it has been paid, and upon trial, the payment of the money being the point in issue, the jury in effect find that it has been paid, by finding a general verdict for the defendant, upon which the court render judgment; or suppose the jury find a verdict in favour of the plaintiff, to be released upon the payment of a certain sum of money by the defendant, whereon the court give judgment; can either party, I would ask, after the result of the action, thus, in either way, maintain a second ejectment for the purpose of trying the same question over again? It must strike the legal mind, I think, as being singularly anomalous if he could. So ejectment may be supported by a mortgagee, to recover or compel the payment of money which has become payable under the mortgage, and remains unpaid. Smith v. Buchannan, 1 Yeates 13. But has it ever been imagined by any one, that the mortgagee, after bringing such action, and a verdict of a jury, and judgment of the court thereon had against him, on the ground that they believed the money claimed was all paid, could sustain a second action for the same claim? I am inclined to believe that it never has; and certainly if it be that it has, it seems impossible that it could be sustained either upon reason or any analogous principle of either law or equity. The purpose and object sought to be obtained in bringing actions of ejectment in all such cases, as well as the grounds and principles upon which they are supported, are certainly different from those which prevail and govern in actions of ejectment at common law. And hence the act of assembly of 1807 could never have been intended by the legislature to have any application to actions of ejectment, when brought, either to compel the payment of money, or a specific performance of a contract for the purchase of land. It has been objected, however, that it does not appear upon the record of this case,'for what purpose the previous actions of ejectment, the records of which were given in evi
I have no doubt that, in many cases, it can do no good to write and publish an opinion differing from the majority of the court; but there are cases in which it is proper to do so; cases on constitutional questions, and sometimes on the effects of acts of assembly, would seem to be among those in which it may be proper that a judge should make known his opinion.
The action of ejectment, though one of the most common in use, is yet spoken of very loosely, both in and out of court. In 1806 the form of the action was changed, but it was soon decided that it was changed only in form; that in substance it was the same, and generally as much under the power of the court, to be modified, so as to answer the ends of justice, as the old form was. 1 Serg. & Rawle 311. In 1807 some alterations were made. Before this act several ejectments might be brought in succession between the same parties for the same land. By the fourth section it is provided, “ when two verdicts shall, in any writ of ejectment between the same parties, be given in succession for the plaintiff or defendant, and judgment be rendered thereon, no new eje'ctment shall be brought; but where there may be verdict against verdict between the same parties, and judgment thereon, a third ejectment in such case, and verdict and judgment thereon, shall be final and conclusive, and bar the right.”
The phrase, an equitable ejectment, is in common use, but is
The ejectment to obtain possession on articles of agreement on payment or tender of purchase-money, or for vendor to recover possession, because the price was not paid, and the proofs which might be adduced on either side in such cases, was as usual in practice in and long before 1807 as it is now, and was as well understood by courts and lawyers as it is now; but until very lately this objection was unknown in the profession and in court. We find such cases in the first and second volumes of Dallas’s Reports. In Yeates’s Reports, from the beginning. In Billington v Welsh, 2 Binn. 184, Tilghman, C. J. says the party may have another trial. Youst v. Martin, 3 Serg. & Rawle, 423, was an ejectment by a vendee on articles, who had been evicted. It would be endless to cite cases where this was done.
In 14 Serg. & Rawle 301, Tilghman, C. J., says, “This section (above quoted) was drawn with great care and caution, because the object was to deprive one of the parties of a right which had been enjoyed before, of bringing a third ejectment after the loss of two verdicts and judgments. The intention is clearly expressed, that to bar the right there must be not only two judgments, but two verdicts preceding them.” He never anticipated that one verdict and judgment would be deemed conclusive.
In 1 Watts 337, 338, it is treated as settled, that less than two verdicts and judgments in the same way will not bar; in the same case it is said, “ the refusal to grant a venire de novo in the supreme court, may furnish ground to believe that it was thought another trial would not be available, but cannot prevent the party from bringing a new ejectment, in case he finds he can supply what testimony was wanting before, or in any way overcome the difficulties or objections interposed to his recovery at the first trial. Now difficulties and objections occur as often in suits on articles of agreement as in any other ejectments, and in many cases can be met and overcome on more preparation and fuller consideration, I need not say that in chancery there may in proper cases be a bill of review; the present decision makes one trial final in such eases. I would not, however, have written this opinion, if it had not been from a settled conviction that an act of assembly, considered plain in its terms, and so decided to be from its enactment until the last few years, as I believe, is not under the control of the court, and a construction which in effect repeals it in a large and important
Judgment reversed.