Dentler v. Brown

The opinion of this court was delivered by Bell, J. It is not to be disputed that the principal consideration of the proposed conveyance from Carr to Brown was the covenant of the latter to apply the several instalments of purchase-money as they respectively fell due, in discharge and satisfaction of the mortgage executed by Carr to Margaret Shippen, of the judgment recovered by Morrison & Co., and of the book account held by Brown against Carr. But it is also apparent that, at the time of the execution of the article of agreement of September 1842, both parties contemplated the mortgagee would be willing to await payment of her mortgage by successive gales, at the times fixed for the several payments to be made by Brown. The article itself furnishes indubitable evidence of this ; but were it doubtful in this particular, all hesitancy is put an end to by the testimony of Samuel Derr, showing the construction put upon this instrument by the parties themselves. He swears, that in 1843, Carr told him of an intended visit to Pottsville, with' a view to make some arrangement with Dr. Shippen, the agent of Mrs. Shippen, for the payment of the mortgage, with the proceeds of the land sold to Brown, and that after Carr’s return, he informed the witness he had failed of [298] his errand; that he could get no arrangement made, and, consequently, “ the whole matter between him and Brown was -at-an end.” An attempt made by Brown himself, to induce .Dr. Shippen to accept the instalments, as they fell due under his agreement, in payment of the mortgage, met with no better success. The agent utterly refused to accede to the terms of that agreement, and shortly after-wards caused proceedings to be instituted upon the mortgage, under which the mortgaged premises were finally sold to a stranger. It appears also, that in discharge of his undertaking, Brown actually paid off the judgment due to Morrison & Co., and took an assignment of the judgment to himself. This assignment, is, however, of no value, for it is conceded the estate of Carr is insolvent. In addition to the loss thus incurred, the effect of this action is to make him answer in damages for non-payment of the purchase-money of an estate which he never got, and this on the ground that he has been guilty of such negligence as in equity makes him liable thus to answer. But this notion is founded in an entire misrepresentation of the cases cited on the argument by the plaintiff in error. Had a conveyance been made to Brown, and possession delivered in pursuance of it, and the purchase-money due at the time of the sale, the case might, possibly, have been brought within the equitable principle recognised in Harper v. Jefferies, 5 Wh. 26, and Renshaw v. Grans, 7 Barr, 117. But neither of these supposed facts form a feature of the case. On the contrary, no conveyance was made by Carr, and, so far as appears, no possession was delivered to or taken by Brown. To prove such a possession, the declarations of John Passel, who appears to have occupied the southern end of the tract, were offered to prove that he was Brown’s tenant, and properly rejected. No connexion whatever was shown to have existed between Brown and Passel. Why, then, should his declarations be received to affect Brown, who, for aught that appears, was a total stranger to him ? Besides, there was no reason shown why Passel himself was not produced. But had such a possession been shown, it would not have helped the plaintiff, for the very cogent reason that the other important element necessary to success was wanting: namely, the present liability of Brown to pay so much of the purchase-money as was sufficient to discharge the encumbrance which threatened Carr’s title. He offered, in good faith, to apply so much as was then due, in part satisfaction of the mortgage, in order to stay the hand of the mortgagee. But this was refused. Was he bound to do more, in order to fulfil his covenant? Were authority required to show that he was not, it [299] is furnished by the undoubted doctrine recognised in M’Ginnes v. Noble, 7 W. & S. 454. It is there agreed that a vendee, even after conveyance, is in no default for suffering a sale of the land under a prior encumbrance entered against the vendor, where the purchase-money is not due at the time; for, say the court, “ he was not hound to pay the encumbrances, as he had nothing in hand to pay them with.” He may, therefore, under such circumstances, “ suffer the land to be sold with a clear conscience, and if, at the sale by a judicial process, a stranger purchase, no blame will be imputable to him; the defence will go to the whole of the consideration, for a man is not bound to pay for what he has not received.” I have extracted this much of the opinion delivered in the case last cited, rather to show the point has before passed in review in this court, than to call in the aid of authority for so plain a proposition. Had, indeed, Brown purchased the property at the sheriff’s sale, for less than he agreed to pay Carr for it, possibly a different set of principles might have been found operative. But as it is, there is no pretence for saying he was compellable to do more than he professed to do, by tendering the first instalment of the sum he had covenanted to pay for the land, to the mortgagee. He undertook to do no more. The effort here is to compel him to go beyond this; and, therefore, it is an effort not in pursuance of the contract, but in direct contravention of it. The idea suggested in the first proposition submitted by the plaintiff, that it was the duty of the defendant, when he ascertained his portion of the land was about to be sold under the mortgage, to call on the court for a direction to the sheriff, first to sell the purpart retained by Carr, is somewhat unique. It is certainly not deducible from the cases cited in support of it. Any application of the sort, instead of being in furtherance of the agreement of the parties, would have been in direct hostility to it, since the primary object was to save Carr’s portion from the grasp of the mortgagee. "With what face, then, could Brown have called for a sale of that portion, in order to save the part of which he had agreed to take a conveyance ? The truth is, the refusal of the mortgagee to fall in with the view of the contracting parties, disjointed their whole scheme, and caused its failure, without any blame in either. So Carr himself regarded it, and this very naturally caused his declaration to Derr, to which I have already alluded. The views expressed cover the whole case, and show that the instructions given by the court below were correctly founded. [300] It is scarcely necessary to say there is nothing in the exception taken to the admission of Dr. Shippen’s testimony. Indeed, it has not been urged. Judgment affirmed.