44 Pa. 363 | Pa. | 1863
The opinion of the court was delivered, by
The article of agreement, standing by itself, bound the complainant _ to make a good title to the defendant. Such was its legal effect, and unless the defendant has waived the rights assured to him by it, he may insist upon such a title both in a court of law and in a court of equity. But when a vendor goes into a court of equity and asks for a decree that his vendee by articles shall specifically perform the agreement, he is bound to offer a title that is more than what the court may pronounce good. That is sufficient for a court of law, but it is an invariable rule in chancery that a purchaser shall not be compelled to accept a doubtful title, or what in some of the cases is called an unmarketable title. And every title is doubtful which invites or exposes the party holding it to litigation. In the opinion of the court it may be good, but if its validity depends upon- some facts resting in the knowledge of some party or writings not before the courtylf there be a colour of an outstanding title which may prove substantial, though there is not enough in evidence to enable the chancellor to say that it is so, a purchaser will not be held to take it, and encounter the hazard of litigation
We have no hesitation in saying that for aught that appears, the complainant’s title to the lot agreed to be sold, is in our own opinion good. The partial misdescription in the deeds of its distance from Jefferson street is not even a cloud upon it, in the light of all, which the deeds contain to identify it. When lands are described by distances and adjoiners, and there is a discrepancy, the former always gives way, for the reason that it is easier to be mistaken in a measurement than it is in a boundary. If, therefore, the boundaries are correctly described in the deeds, as is the case in the line of the complainant’s title, it matters not that there was an inaccuracy in stating the distance of the lot from Jefferson street. The thing to be ascertained is, whether the property offered to the defendant, is the identical property which Osborn Conrad (of whose title the complainant had become the purchaser at sheriff’s sale), had obtained by deed from S. S. Jones. That it was is manifest, not only by the de scription of the adjoiners, but by the recitals of title.
And so far as appears in the case, the title of the complainant is good even as against Elizabeth C. Jones. Osborn Conrad, whose title he purchased at sheriff’s sale on'the 7th of March 1859, had indeed sold and conveyed the lot to Elizabeth O. Jones on the 1st of April 1857. She was therefore the owner of the' property at the time when it was sold as the property of Conrad. Rut she had not placed her deed upon record, and she was not in actual notorious possession. She caused her deed to be recorded not until the 3d of June 1859, which was after the sheriff’s sale, though eight days before the sheriff’s deed was made to the complainant. It must be admitted that a purchase] at sheriff’s sale, who has not received his deed, is not within the words of the recording acts, which declare that deeds and conveyances not proved and recorded within six months after their execution, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for a valuable consideration, unless they be proved .and recorded before the proving and recording of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim. But, in Stewart v. Freeman, 10.Harris 120, he is declared to be within their spirit, and entitled to their protection. And it was said that the time when the sheriff’s sale is made, not the date of the sheriff’s deed nor of its acknowledgment, is the period at which the state of the possession and the record becomes material. On the authority of this case the complainant’s title is the better as between him and Elizabeth C. Jones, the earlier grantee, if there be nothing more to impeach it than appeared in evidence before the master.
But is it a marketable title, such an one as a court of equity
It is insisted, however, on the part of the complainant, that even if his title is unmarketable, the defendant is precluded from refusing to execute the contract specifically, by his having waived his right to object on account of the title of Elizabeth O. Jones. This point does not appear to have been definitely made in any of the exceptions taken to the report of the master, and if it had been, it could not prevail. It is not supported by either the facts or the law. Certainly there is not a shadow of proof of any express agreement of the defendant to take an imperfect title, or to assume the risk of the former conveyance made by Osborn Conrad to Elizabeth C. Jones. On the contrary, in all the negotiations which preceded the execution of the article of agreement, he insisted upon having a good title, and expressed a determination not to buy a lawsuit. He was also constantly assured by the vendor that the title was undoubted and indisputable. Nor is a waiver to be implied. There is nothing that tends to raise an implication of it, unless it is found in the facts that the defendant knew of the prior deed to Elizabeth C.
Our conclusion then is, that the case shows neither an express nor implied waiver of the defendant’s right, under the agree-' mont, to a good and marketable title.
The decree made at Nisi Prius is therefore affirmed.