Derr v. . Dellinger

Pearson, C. J. The legal effect of a contract of sale and a bond for title in pursuance thereof, is to create an equitable estate in. the vendee, leaving the legal estate in the vendor in trust to secure the payment of the purchase money, and then in trust to convey to the vendee. In our case Dellinger had the equitable estate, and the question is, what has become of it ? How has it been lost and annihilated, as is assumed to be the fact, by the rejec *303 tion of tbe evidence tending to show at one time it had an existence? We do not concur in the view taken of this case by his Honor. The question recurs, how has Dellinger’s equitable estate been annihilated? Such an effect may be produced by the act of the party holding the legal title in passing it to a a purchaser for valuable consideration without notice, then the “ equitable estate perisheth for want of a legal estate to feed it,” and the owner of the equitable estate must look to the trustee for compensation; .but if the purchaser has notice, he takes the legal title subject to the equitable estate. Derr had notice of this outstanding bond for title; in other words, of this equitable estate, and took the legal title, subject to this equity. So the deed to Derr did not annihilate the equitable estate of Dellinger. It is then said Dellinger forfeited his equitable estate by failing to make payment on the day his bond fell due. If this is to be taken in reference to time, suffice it, “ time is not of the essence of a contract.” Falls v. Carpenter. If it be taken that Dellinger did not himself pay the money, suffice it, “ wffiat you do by another you do yourself.” It could make no difference whether the money was paid by Dellinger or Smith. The money was paid or caused to be paid by Dellinger, and was accepted as a performance of Dellinger’s part of the contract. Again, it is said Smith paid no consideration, and his agreement with Dellinger to pay the purchase money for him and take the deed, was “ nudum pactumIt is true, Smith could have refused to comply with this agreement, but he chose to perfect it by paying the money and taking a deed from the Johnsons. We are at a loss to see any ground for the notion that this arrangement between Dellinger and Smith relieved Derr from the trust with which the estate was burthened, when he acquired the legal title. Suppose Smith had paid Dellinger $50 for the bargain, or that Dellinger had paid Smith $50 to take *304 the bargain off his hands and relieve him from his notes ; or suppose they had agreed that inasmuch as Dellinger could not pay for the land, he would, without any consideration, let Smith have the benefit of the contract of sale, provided he would pay the purchase money, how does this in anywise concern Derr or affect his rights ? Again it is said the agreement between Dellinger and Smith is not in writing. Admit it to be true that under the statute of frauds this parol agreement was void, and that neither party could have compelled the other to a specific performance; still as the parties chose to perform it, and as the Johnsons have executed a deed, and taken up the title bond for the land without requiring “ an assignment of the bond in writing,” we are at a loss to see how this concerns the plaintiff, or in anywise relieves him from the burthen of the trust. As a dernier resort — a last effort — it was urged ¡by Mr. Hoke in his very able and ingenious argument, “ the bond for title is executed bjr only one of the Johnsons, and Del-linger acquired, under the contract of sale, an equitable estate in one undivided moiety only.” Suffice it, there was evidence tending to show that James F. Johnson, in making the contract of sale to Dellinger, acted. for himself and his tenant in common, R. D. Johnson, and his agency was ratified at the time of the execution of the Deed to Derr, and also by the deed to Smith. Error. Pee Cukiam. Venire de novo.