210 Pa. 109 | Pa. | 1904
Opinion by
At the time of the death of John Yeaney the legal title was in him to the undivided fourth of the real estate, of which partition was sought by the proceedings below. When they filed their bill the plaintiffs owned the remaining three fourths. By the twenty-second clause of his will, Yeaney directed that so much of his estate as he had not disposed of in the preceding clauses should be divided among those who would inherit from him under the intestate laws of the state. All of the defendants except the three appellants are those persons. They were made parties to the bill because on July 12, 1898, Yeaney and the other owners of the land entered into an agreement with W. H. Stamey & Company by which he agreed to sell them his interest for the sum of $12.00 per acre, on the following terms : “ One half in cash in six months from date of article, the balance in two equal annual payments, with interest. And it is agreed that in case the said W. II. Stamey & Company does not make the payments within the limits of the time specified and stated therein, then this agreement to be null and void, and all parties to be released from all liability herein.” It is under this agreement that the appellants claim an interest in the land, and by the bill, as amended, they were distinctly notified why they had been made parties to it, and were sufficiently warned by it to appear and, by answer and proofs, establish their right to the undivided fourth.
The bill was filed March 5, 1903. It was served on Stamey and Brosius, March 14, by giving each of them a copy. On March 24, an appearance was entered for the three appellants by C. Z. Gordon, Esq., a member of the Jefferson county bar, and two days later Myers accepted service of the bill. Subsequently there were three amendments to it, utterly immaterial to the appellants, as they simply made substitutions and changed names in the list of those in the line of descent from Yeaney. On-April 25, 1903, an amendment
Under the equity rules, when a bill is taken pro confesso, the court proceeds to a decree ex parte. The same, however, may be set aside upon cause shown. On June 23, 1903, the appellants presented their petition to vacate the decree, alleging as a reason therefor that their attorney, after having appeared for them, had notified them that he could not act for them, as he had appeared for two of the other defendants whose interests were adverse to theirs, and further, that they had not been notified of the amended bill. There was a still further averment that they expected to be able to prove that the terms stipulated in the agreement of July 12, 1898, for the payment of the moneys due on the contract, were waived by Yeaney, and leave was asked to answer the amended bill. A rule was granted to show cause why the decree should not be set aside and the petitioners allowed to answer. This was subsequently discharged. .
On the hearing of the rule granted to vacate the decree the appellants offered nothing to excuse their default, though given the fullest opportunity to do so. Mr. Gordon, who had appeared for them, subsequently notified them that he could not represent them, for the reason already stated. This is all he did. He never withdrew his appearance, nór asked leave to do so. He accepted service for them of the amendment to the bill and stood on the record as their sole counsel up to the day the bill was taken against them pro confesso. They were all mem
With appellants’ whole case before it, the court’s conclusion was that their claim to an interest in the land must be determined by the allegations of the bill. This was manifestly so, for no testimony was offered to show that the agreement of July 12, 1898, should be varied in any manner, or that the appellants had any rights whatever under it, except as therein expressed. It is true Stamey, on the very day he offered himself as a witness at the hearing of the rule to set aside the decree, undertook, by an assignment of his interest in the agreement, to qualify himself to testify as to what had taken place between him and Yeaney, in support of the contention that the time for the payment of the purchase money had been extended; but the court correctly said the conclusion was irresistible that the sole purpose of the assignment was to make him a competent witness, and it was, therefore, ineffectual to accomplish that object. In Darragh v. Stevenson, 188 Pa. 397, we said: “We regard it as clear that an assignment by a party to a controversy, made only for the purpose of enabling him to sustain the suit by his testimony, is not made in that good faith which the statute intends.”
By the terms of tbe agreement, one half of the purchase
The agreement is practically an option and was so regarded below. .It is true it is an unconditional covenant on the part of Yeaney to convey, and there is an agreement on the part of Stamey & Company to pay, but their agreement has attached to it, doubtless at their instance, a proviso that if they do not make the payments at the time stipulated, they are to be released from all liability. The agreement in Yerkes v. Richards, 158 Pa. 646, was substantially the same, and the condition as to failure to make payment similar. We declared it to be an option. Here Stamey & Company never exercised their option by paying the first installment when it became due, and by their voluntary default elected to say they would not take the property. Their complaint is that Yeaney’s personal representative and heirs are asking for a forfeiture of their rights under the agreement, but the truth is they never had any right under it, except that of accepting the offer to sell by paying Yeaney the first payment, in accordance with the terms of the agreement, and when, on January 12, 1901, they tried to pay all of the purchase money, they had no right to demand the deed, and of course have no such right now.
The case was most intelligently disposed of by the court below.
Its decree is affirmed and the appeal dismissed at appellant’s costs,
