167 A. 414 | Pa. Super. Ct. | 1933
Argued March 15, 1933. This is an action in assumpsit by a vendee to recover hand money paid to the vendor on an agreement for the purchase of real estate and comes to us on an appeal from an order of the court of common pleas of Dauphin County discharging a rule for judgment for want of a sufficient affidavit of defense. After the action was begun, the vendee died and his administratrix was substituted as plaintiff. *105
The averments of the statement of claim not denied and the allegations in the affidavit of defense must therefore be treated as verity for present purposes. With that principle in mind, we will state the facts so disclosed by the pleadings. Pursuant to public advertisement, the defendant, Sarah C. Crum, on February 20, 1930, offered at public sale a farm in Dauphin County. The auctioneer announced that the terms of sale were ten per cent of the purchase price when the property was "struck off," and the balance "upon the execution and delivery of a good and lawful deed on April 1, 1930, by the vendor to the purchaser, for the conveyance of said farm, free and clear of all liens and encumbrances, . . . . . . when possession shall be given." A number of bids having been made by Clarence F. Swartz and others, the real estate was "knocked down" to Swartz for the sum of $7,960, and the purchaser paid to the defendant ten per cent of the price, or $796. At the time of the sale, the heirs of Harry W. Crum owned an undivided three-fourths and Sara Fox, a single woman, an undivided one-fourth of the property. Harry W. Crum died intestate on May 30, 1928, leaving to survive him a widow, Sarah C. Crum, the defendant, and six sons, one of whom was a minor, so that at the date of the sale, Sarah C. Crum, defendant, was the owner of an undivided one-fourth of the premises and each of her sons an undivided one-twelfth. At the time of the sale Swartz knew that defendant was not the sole owner of the farm.
The premises when sold and thereafter were subject to a mortgage, two judgments, and taxes, aggregating in all about $2,500. On April 1, 1930, all of the owners joined in executing and tendering to Swartz a deed for the premises and were ready and willing, coincident with the payment of the balance of the purchase money, to pay and discharge the liens against the *106 premises, the sum of which was much less than the balance due. Pursuant to authority granted by the orphans' court of Dauphin County under the provisions of the "Revised Price Act", the guardian of the minor son of Harry W. Crum joined in the deed which was so tendered. The plaintiff refused to accept the deed claiming the right to rescind the contract.
We will confine our attention to the reasons assigned by the plaintiff as a basis for rescission as indicated by the statement of the questions involved. Plaintiff contends that the vendee was entitled to rescind because (1) the orphans' court proceeding was void and as a consequence no title was tendered for an undivided one-twelfth, and (2) the premises were subject to encumbrances.
It is argued by appellant that there is an inconsistency in the petition for the sale of the minor's interest in the land by reason of the fact that there had been a public sale of the premises, while the petition presented to the orphans' court was for a private sale, and that this constituted a fraud upon that court. We are unable to discover any merit in this contention. The appellant admits that a decree of the orphans' court authorizing a sale of real estate cannot be attacked collaterally if that court had jurisdiction: Gilmore v. Rodgers,
With relation to the remaining contention of the appellant, it will be noted that the present action is to recover hand money and is not for specific performance, and that the vendee never tendered payment of the balance due. There is not any allegation in the statement of claim that the encumbrances could not be removed or that the purchaser had changed his position between the date of the contract and the time for performance. The payment of the balance of the consideration and the delivery of a deed free from liens and encumbrances were "concurrent conditions." "It is true that a vendor cannot rescind a contract and at the same time directly or indirectly enforce it. If by his action he fails to keep its stipulations, a rescission as to him follows and he is liable to the purchaser for the resultant injury. His breach of the agreement is as effective to prevent him from enforcing any right under it as the default of the purchaser is to deprive him of the benefit of its stipulations. Neither party can enforce the agreement while he is in default. The vendee must tender the unpaid purchase *108
money, as a general thing, whether he wishes to rescind or to enforce the agreement; this results from the principle that a party himself in default, has no right to insist on rescission while in default": Sanders v. Brock,
The vendee Swartz having sued to recover hand money and not having tendered the balance due from him could not justify the rescission of the contract by reason of the existence of the encumbrances which were liens payable in money, the balance of the consideration then due from the vendee being more than the amount of the liens, and the vendor being ready *109 and willing at the time fixed for the consummation of the agreement to pay such liens from the consideration.
There is not any inconsistency between the principles which we have applied and those set forth in the cases cited by appellant: Huber v. Burke, 11 S. R. 237; Gans v. Renshaw,
The reasons assigned by appellant do not justify the entering of a summary judgment. By a rehearsal of the facts as disclosed by the pleadings we do not intend to express any opinion as to the merits of the controversy. If the facts presented at trial correspond with the respective contentions of the parties as now presented, there will be important questions of fact to be submitted to a jury.
The order of the lower court is affirmed.