Brown v. Nickle

Per Curiam. The cases of Colwell v. Woods and Kerr v. Gilmore, the latter of which pushed the doctrine to its verge, rule the present too imperatively to he resisted. In the first of them it was determined that a conveyance and simultane-, ous covenant to reconvey on repayment of the purchase-money before a given day, must be construed to be a mortgage, though it appear by parol that the partiés did not intend it to be so; and in the second, that it is not competent to the parties to prove by parol that the defeasance was a subsequent and independent agreement. These cases are not to be resisted; yet we must suppose that there may be, in some shape, and under some circumstances, such a thing as a conditional sale. - But the proof proposed in this instance was not of distinctive acts which constitute it, but of the understanding of the parties. Their understanding, however, must be gathered from the writing; and if that be ambiguous on the face of it, it cannot be gathered from parol proof. If there is no patent ambiguity in the instrument,’constituted as it was by the conveyance and a separate defeasance, they must nevertheless abide by the legal effect of it. The evidence of mere misapprehension, therefore, was properly rejected. But the direction was erroneous. Subsequent to the decision of this court, in Seitzinger v. Ridgway, 9 Watts, 496, the legislature enacted that a party should not be barred in any case by less than two verdicts and judgments; but still later declared that one verdict and judgment shall be conclusive in actions of ejectment brought “ to enforce the payment of purchase-money toherein time becomes of the essence of the finding of the jury.” It is plain, from the words of it, that this declaratory act applies to the specific case of a plaintiff vendor who had recovered a verdict for the land, in which the jury had given the defendant time to redeem; for in no other can time be of the essence of the finding. In the first ejectment, ruled to be conclusive in the District Court, the plaintiff had 392 not recovered a conditional verdict, for lie was alleged to be the debtor, and went as a mortgagor, alleging payment for the land, not the price of it. The case is consequently not within the letter or the meaning of the restrictive act. Judgment reversed, and venire de novo awarded.