184 Pa. 34 | Pa. | 1898
Opinion by
This is an action for the purchase money of land and the defense is that plaintiff’s title is not marketable. The case stated shows the facts to be briefly these: One Latham conveyed the land in 1880 to his stepson, the plaintiff, who in turn conveyed to his mother, Latham’s wife, and she, dying, devised
The objections of the appellant to the title are that neither the committee nor the attorney had any authority to discontinue the suit after the death of their principal, and that such discontinuance is not a bar to the devisee or heirs at law of Latham to have the suit reinstated, or to bring a new one for the same cause of action. The case stated then proceeds that if the court shall be of opinion that the discontinuance was properly made, and that the plaintiff can, in so far as the said equity suit affects his title, convey to defendant a fee simple, etc., then judgment for plaintiff, but if the court shall be of opinion that the “said discontinuance wa,s improperly entered and, therefore, plaintiff’s title is not a good marketable title,” etc., then judgment for defendant. In thus submitting to the court an alternative judgment, turning merely on the validity of the discontinuance, the case stated is defective because it bases the judgment on an inconclusive fact. A discontinuance, rightly or wrongly entered, even if entered by Latham himself in his lifetime, would not be a bar to a second action for the same cause, by him or his successor in title, and defendant is not and cannot be put in the position of a purchaser without notice. But, as it is very clear that the discontinuance was without authority, we are enabled, notwithstanding the defect, to enter judgment. The bill was an assertion by Latham that the title was still in himself, notwithstanding his conveyance, and his committee prosecuted the suit only in his right and for his benefit. When he died the
Whether the discontinuance of the equity suit, however, was rightly or wrongly entered, the title of plaintiff is still liable to appellant’s objection that, at least as to a purchaser with notice, it is open to litigation on the subject-matter of the bill, and therefore is not marketable in the sense that the case stated calls for.
Judgment reversed and judgment directed to be entered for the defendant.