48 Pa. Super. 236 | Pa. Super. Ct. | 1911
Opinion by
The parties stipulated, in the case stated, that if the court should be of opinion that a good and marketable title in fee simple, free of all incumbrances, to an undivided one-seventh of the land described, could not be conveyed by defendant during the minority of any of the children of Mary Bailey English, judgment should be entered for plaintiff for $1,000, the amount of the down payment he had made at the execution of the contract between him and the defendant, otherwise judgment should be entered for the defendant for costs. Mary Bailey English was the daughter of Eli J. Bailey, in whom the title to this and other lands was vested at the time of his death. The will of Eli J. Bailey contained this devise: “Item Second. I give and bequeath to my daughter Mary Bailey English the Breckenridge farm on which she now lives also the Alfree farm also the Worldley farm also ten shares of stock in the People’s Nat. Bank, Pittsburg.” Then, after gifts to others, this clause occurs: “And I do hereby require and do order that the portion bequeathed my daughter Mary Bailey English be and remain for her benefit during her natural life and for the maintenance and education of her children, and after her death and the youngest child becoming twenty-one years of age they, the said children, may dispose of the said farms as they see proper, but dividing share and share alike.” Mary Bailey English died in 1905, intestate, and left seven children, the defendant being one. Two of her children were, at the date of the tender of the deed under the contract between the plaintiff and the defendant, under the age of twenty-one years. The learned judge, without de
It will, be observed that no questions of fact are involved, and that the question whether the defendant had a good title in fee simple, free of all incumbrances, at the time she tendered the deed, is purely one of law, depending exclusively upon the proper construction of the above-quoted provisions of the will of Eli J. Bailey. It is argued by appellant’s counsel that, this being so, it was incumbent on the court to 'determine the question of law and enter judgment for the defendant, if the question should be determined in the affirmative. In Kostenbader v. Spotts, 80 Pa. 430, the trial judge drew a distinction between an action to recover the purchase money, which is treated as governed by the same equitable principles as a bill in equity for specific performance, and an' action brought by the vendee to recover back the portion of purchase money that he has paid. He says: “But the case before us is not that of a vendor seeking to compel the vendee to accept and pay, but is the case of the vendee who, having paid a part, refused to accept and pay more, but sues to recover back what he has paid, as upon a rescinded contract. He is therefore the actor, and must show the title to have been such as he was not bound to accept. The case is not quite so strong as it would be if the vendor sought to compel acceptance and payment; he simply claims to keep what he got, but asks no more.” Does this distinction apply where the express agreement is to convey, not only a good, but a marketable title? Is it not sufficient, even in an action by the vendee to recover back the part of the purchase money he has paid, for him to show that the title is not marketable within the definition of that term as established by the decisions?
It remains to consider whether the questions of law involved in the construction of the will of Eli J. Bailey are so doubtful as to render the title unmarketable, within the meaning of that term established by the foregoing and other decisions. These questions are quite fully and carefully stated in the opinion filed by the learned judge of the court below, and are summarized by the appellee’s counsel as follows: 1. What was the nature of the provision for Mrs. English’s children, and when would their estate vest? 2. Would the vendee of any of these children be entitled to possession of an undivided interest, as tenant in common, upon the delivery of a deed before the youngest child became twenty-one? 3. Would the purchaser of the interest of one of these children have the right to maintain partition before the youngest child became twenty-one? We cannot say that these questions do not fairly arise under the will. Nor can we say that all of them are so free from doubt that reasonable men might
The judgment is affirmed.