2 Grant 103 | Pa. | 1853
The opinion of the court, containing a sufficient statement of facts, was delivered December 16, 1853, by
— The contract entered into by the executors of Michael Hay, for the sale of the farm received from John Hay, did not, in any manner, affect the title of the latter to the land in dispute. The subsequent rescission of that contract, and the restitution to the purchaser of the money received, on the ground that they were unable to make title, was equally immaterial to the present issue. The 1st and 2d assignments of error are, therefore, sustained; but the third calls for our examination into the nature of the plaintiff’s title, from which it will appear that he has sustained no injury by the errors complained of, because he was not entitled to recover in any aspect of the case.
The land in dispute was the property of Michael Hay, in 1840, and in that year he delivered the possession to John Hay, in exchange for another tract, the possession of which was, at the same time, delivered by John to Michael. The farm which John received, was considered worth $600 more than the other, one half of which sum was allowed by Michael, the father, to his son John, as an advancement, and the remaining $300, John was to pay to Michael. The father died in the fall of that year, add on the 1st Sept. 1847, on the petition of John Hay, setting forth the contract in respect to the two farms, and alleging
Under the Act of 1836, it is our duty to declare, that where a remedy is provided by statute, that remedy must be pursued, and the proceeding at common law is superseded. The principle operates Avith much greater force, when the statute remedy is substituted for the inconvenient practice introduced by the courts, of administering equity in common law forms, to prevent a failure of justice.
If this ejectment was brought to compel specific performance of the contract, it cannot be sustained, because the legislative power has prescribed a different remedy in another forum; and because that forum, by consent of all the parties, had jurisdiction of the case long before this ejectment was commenced. It is worthy of remark, that by the decree already made, with the assent of all the parties, John Hay was not required to procure the signature of his wife, to the conveyance of the Hick farm. Such a decree would have been improper, if she was unwilling to convey.
A vendee, under articles of agreement, is not entitled to specific performance, where the Avife refuses to convey. A chancellor will not order a defendant to perform impossibilities. Hence, a vendor will not be forced to procure either his own wife, or a stranger, to join in a conveyance. Clark v. Sevier, 7 Watts, 107; Fisher v. Worrall, 5 W. & S. 486. On this ground also, the plaintiff must fail to recover, if his object be the specific performance of the contract.
His right, to recover must therefore depend upon his legal estate. Having voluntarily parted with the possession, upon a contract, under which he has received the possession of another farm, and has also received the sum of $300, in an advancement
There can be no trespass in holding possession under a subsisting contract with the owner. If the son had agreed to procure the signature of his wife, and failed to do so, the father might elect to treat the contract as rescinded, and if he retained control over the consideration received, this institution of an ejectment might, perhaps, be regarded as an election to rescind, so as to enable the jury to do. equity by means of a conditional verdict.
But in this case, the Flick farm, received from John Hay, is still in possession of Michael Hay’s heirs ; also the legal estate of Michael Hay in the Fulling Mill Farm, has passed by judicial sale to the plaintiff. Thus the consideration received, and the legal estate which was to be conveyed, have been separated; so that neither Michael Hay’s heirs, who hold the consideration, nor John Weller, who holds the legal title to the land in dispute, can, without the consent of each Other, restore John Hay to the condition in which he stood before the contract. The result is, that the right of rescission is lost. Daniel Weyand, as the purchaser of John Hay’s interest in the Fulling Mill Farm, has a right to the benefit of all payments which have been made by John Hay, on the contract; if the contract be carried into execution, they go to the credit of Weyand, and he is only bound to pay the vendee; if it be rescinded, he has a right to insist on the restitution of the consideration to himself.
A rescission of the contract is out of the question. A specific performance which looks to the coercion of Weyand, to procure a deed from John Hay’s wife, is equally so. All that remains is, to execute it so far as the contracting parties had title to convey, and to substitute compensation for the interests which they did not possess, and cannot control. John Hay’s wife was one of six heirs, and when her husband took the Flick farm at the appraisement, one-sixth of it remained the estate of his wife, as it was at the death of her father, and the remaining five-sixths became the property of the husband. Kean v. Ridgeway, 16 S. & R. 60; Hoffer v. Wightman, 5 W. 205. It matters not that the wife’s share of her father’s “whole estate” amounted to more than the value of the farm, nor is it material that the husband paid to the other heirs of Flick, their distributive shares of the value, out of the money received in right of his wife, from her father’s estate. These circumstances will not give her any greater interest in the farm, than she had at the death of her father. Benedict v. Montgomery, 7 W. & S. 238. If the par
Judgment affirmed.
