2 Watts 478 | Pa. | 1834
The opinion of the Court-was delivered by
The first error assigned in this case is, that the court erred in directing the jury that the recitals contained in the
Although it may be doubtful as to the purpose for which this action was originally instituted, it is now distinctly admitted that it is only persisted in to enforce the payment of the purchase money from the plaintiff in error, who was the defendant in the court below. This being admitted to be the object of the suit, it is clear that the plaintiff ought not to be compelled to pay it, unless the defendants in error can show that it is in their power to give him an indefeasible title in fee simple for the land. But as it appeared on.the trial that Amos Loney and Francis Holland were, prior-to the granting of the patent, joint owners of the land with John Lee Webster, it was incumbent on the defendants in error to show that Loney and Holland had parted with their interest in the land, and that it had become vested in some way or other in the defendants in error ; otherwise it was perfectly manifest that they could not make a title for it to the plaintiff in error. It is not pretended that even the shadow of evidence was offered or given for this purpose, unless the recitals in the patent be considered evidence of it. Now although these recitals may be deemed good evidence against the commonwealth, who has admitted their truth, yet I am at a loss to conceive upon what principle or rule of evidence they can be considered binding in the slightest degree upon Loney and Holland; because, unless they would be evidence against them, for aught that appears, these persons still retain their respective rights to the land. They aie not parties to the patent, nor does it appear that they had any knowledge of its being granted ; nor was it shown in any way whatever that they had at any time given their assent to the truth of the recitals contained in it, or that it should be made to John Lee Webster alone. There is then not the least colour for holding these recitals to be evidence against them. And regarding the defendants
The second error is, that the court were wrong in instructing the jury that the articles of agreement made between Thomas Smith and- Amos Loney vested no title, either legal or equitable, in Smith. The title papers produced and given in evidence by the plaintiffs below, showed that Loney had an interest in the land ; that he was the joint owner of an undivided third part of it with John Lee Webster and Francis Holland ; and it was not shown that he had parted with this interest in any other way than by his agreement with the plaintiff in error. By his agreement with the plaintiff in error, which is dated the 17th of October 1795, he seems to have claimed the whole of the land by right of survivorship, and agreed to sell and convey it to the plaintiff in error, upon his paying 17 shillings 6 pence per acre for it in the manner therein mentioned., Under this agreement, the plaintiff in error being in possession of the land, became entitled to hold it so far as Loney’s interest in the ■ land extended, until Loney himself should either seek to have the purchase money paid, or otherwise claim a surrender of the posses^
The third exception is, that the court erred in charging the jury that “if they believed'the testimony of Mr Potts, that in 1793 Thomas Smith declared he had.purchased the tract of land from John Lee Webster, the writing signed by John Skinner Webster would not cancel the agreement with John Lee Webster, but may be considered as fixing and settling the terms of that agreement referred to by the witnesses, and the title tendered would be good, and entitle the plaintiffs to your verdict.” If it had been shown on the trial of the cause that there was a-subsisting contract in writing at the death of John Lee Webster, between him and the plaintiff in error for the sale of the land, John Skinner Webster, as executor of the last will and testament of John Lee Webster, had full power to have carried such contract into execution, by securing the purchase money and making a deed of conveyance to the plaintiff in error for the land. And in case no such contract existed, he was authorized by the will during the minority of Isaac Lee Webster, the father of the defendants in error, to whom the land or the proceeds of it were devised, to sell and convey it. But without a contract made in writing by John Lee Webster, in his lifetime, for the sale of it to the plaintiff in error, John S. Webster, as his executor, had no authority given him by the will to carry it into effect. And after Isaac Lee Webster attained full age, the authority of John S. Webster to sell or dispose of the land under the will ceased. But from the face of the agreement itself, which John S. Webster made with the plaintiff in error, it is very evident that he did not consider himself invested with sufficient powers under the will to make such a contract, because 'he expressly professes to act in making it under a letter of attorney from Isaac Lee Webster, who, we must presume, had in the mean time attained full age. Thus distinctly excluding all idea of any former contract for the sale of the land by the testator, as well as that of carrying any such into effect. • Whether John S. Webster had any letter of attorney from Isaac Lee Webster authorising him to make such a contract, did not appear on the trial of the cause. But if he had, it appears to me-that it was clearly a relinquishment of all former contracts made by the testator with the plaintiff in. error. The defendants in error then, if they meant to
The fourth error is, that the court below charged the jury that the plaintiffs below were not bound to tender a deed of conveyance before the institution of their ejectment. If the plaintiffs below had the legal title in them to the land, that was clearly sufficient at law to enable them to maintain the a,ction of ejectment; and it was only on principles of equity that the defendant there could claim to defend against the plaintiffs’ recovery of the possession of the land. Then what did equity require the defendant below to do in order that he might be protected in the possession of it? Certainly to pay the purchase money: and nothing short of that, as it appears to me, could save him. By the terms of his contract, he had no right to demand a deed of conveyance until he paid the purchase money: and not having offered to pay it, he was neither in law, nor yet in equity,
Judgment reversed, and a venire de novo awarded.