D'Arras v. Keyser

The opinion of the court was delivered by Woodward, J. Sylvester Keyser, the defendant in error, having purchased at sheriff’s sale the land in controversy, as the estate of Auguste D’Arras, the husband of the plaintiff, made a written lease of the premises to the said Auguste on the 1st January, 1849, for the term of one year, at an annual rent of $180, payable quarterly. A covenant was introduced into the lease, which gave the said Auguste, or his present wife, the right to purchase said premises at any time within twelve months from the date of the lease, upon paying therefor $2575, and bound Keyser, on payment of that sum and all arrears of rent, to convey the title [252] to them or either of them. D’Arras continued in possession, and paid the rent till he died, and hi.s wife, after his death, continued the possession and payments of rent until the 9th of October, 1852, when she tendered to Keyser the purchase-money and interest, and produced a deed ready drawn for him to execute. According to the -witness, he said he would have nothing to do with it, and left the room and went up stairs. It does not appear that Mrs. D’Arras paid any rent thereafter, and on the 20th July, 1854, Keyser obtained the possession by virtue of proceedings under the landlord and tenant law, which, though mentioned, are not set forth in our paper-books. She then instituted this action of ejectment to regain the possession, and on the trial the court permitted the jury to find for the plaintiff, on condition that during the present session of the court she pay the defendant the sum of’ $2575, with any interest that may he due ' thereon,” but they reserved the point whether the non-payment of the money into court is not fatal to plaintiff’s claim, and afterward set aside the verdict, and rendered judgment for the defendant on the point reserved. This is the only error assigned upon the record. The principle on which the court ruled the case was, that in an equitable action of ejectment the plaintiff, to be entitled to recover, must not only tender the money before suit brought, but must also have it in court, ready to be paid in the event of a verdict in his favour; and there is no question about the soundness of that principle: Gore v. Kinney, 10 Watts 139, and the cases cited. But was it applicable to the facts of this case ? Was this merely an equitable ejectment? The plaintiff was suing for a possession which had been delivered to her in pursuance of a contract which she had fully performed. She had not indeed obtained the legal title, but equity considers that done which ought to be done, and when she tendered the purchase-money and interest, equity would have compelled Keyser to convey the legal title. Thenceforth she was no longer his tenant, but a-purchaser in full possession, and, in contemplation of law, clothed with the legal title. The proceeding which wrested that possession from her, though under the forms of law, was null necessarily, because long before it was instituted the relation,of landlord and tenant had ceased to exist. It was no better, as to its effect, than if the possession had been obtained from her by force or fraud. Whilst a vendee who has never had possession must come into court prepared for full performance, a vendee to whom possession had been delivered in pursuance of the contract, who has tendered full performance, and then lost the possession without assent or agreement, may recover it without bringing the money into court. This is the doctrine of many cases. The facts are imperfectly stated in Bossier v. Niesly, 2 Ser. & R. 355, but [253] the language of Chief Justice Tilghman clearly recognises the principle I have stated. He says, it is objected that the plaintiffs ought to have tendered the balance of the purchase-money and interest before they commenced suit. But supposing the law to be so in general, this case forms an exception, because, as it was submitted to the jury, we must’ understand that by the terms of the contract, possession was to be delivered before payment of the whole purchase-money, and was delivered accordingly; after which the plaintiffs were ousted. The plaintiffs then had the right of possession before payment of the purchase-money, and being ousted, had a right to recover the possession. Harris v. Bell, 10 Ser. & R. 39, is full to the point. Here the vendee died in possession under articles of agreement, the purchase-money not having been fully paid, and the administrator, thinking the property was not worth what was due upon it, surrendered it to one Bricker, who the next day turned it over to the vendor. The only heir of the vendee brought this ejectment, and it was proved that prior to the institution of the suit, an offer was made to pay what was due upon the articles, which the defendant refused to receive, saying he would have taken it if it had been paid when it was due. The second point of defence taken was, that Harris, the vendor, had a right to retain the possession till the money was paid to him or brought into court, but this court held that, although he did not obtain the possession by force, yet he did so illegally ; that under the circumstances of the case he was a trustee of Mrs. Bell, and could not resist her claim to restoration of the premises; that where the vendor puts the vendee in possession before payment of the money, and then forcibly regains the possession, or acquires it from the trustee of the vendee, quá tenant, he is bound to restore it. I am aware that some of the observations of Judge Duncan in this case have been qualified in subsequent cases: see Griffith v. Dobson, 3 Penn. Rep. 228, and Judge Rogers’ remarks in Foster v. McDivit, 9 Watts 345; but as an authority for the principle for which I have cited it, Harris v. Bell has never been shaken, but, on the contrary, was cited with approbation by Judge Kennedy, in Gregg v. Patterson, 9 Watts & Ser. 208, and by Judge Huston, in Dixen v. Oliver, 5 Watts 372. These cases are sufficient to establish the proposition that a vendee once fairly in possession of land under articles of purchase, but ousted by illegal means, is entitled to recover in an action of ejectment without bringing into court the balance of purchase-money due upon the articles. The parties are restored to their contract relation, and all of their mutual remedies remain. The vendor may enforce payment of the purchase-money by an action of covenant on the articles or by ejectment; the vendee may compel conveyance of the title, by covenant or bill in equity for specific [254] performance. If there has been a tender of the purchase-money, as in this ease, the vendor has only to execute the deed and take the money. . It follows from all this, that the conditional verdict was more favourable to the defendant than he had a right to claim. The plaintiff was entitled to an unconditional verdict in her favour; but when the jury had adjusted the equities of the parties in a manner that seemed to them reasonable and just, and which was only too favourable to the defendant, the court should have sustained it, or at least should not have set it aside for the purpose of giving the defendant an absolute judgment. It maybe objected against these conclusions, that the purchase-money was not tendered within the time limited in the lease, and that time was of the .essence of the contract. Mere default in the payment of money at a stipulated time admits, in general, of compensation, and hence time of payment is seldom treated as of the essence of real contracts. Parties may make it so by express agreement, but there is nothing on the face of this contract, or in the attending circumstances, to indicate the intention of these parties to make time essential. The covenant for title was part and parcel of the lease, and the term fixed was one year, yet the lessees were permitted to hold over, and rent was received without objection. From this the law would imply a renewal of the lease from year to year, and put the landlord to his notice when he meant to determine it. It is not necessary to decide that the implied renewal of the term was an annual renewal of the covenant to sell, though it would be somewhat difficult to hold the lease renewed without renewing all the covenants it contained; but it is impossible to regard the year mentioned in the instrument as any more of the essence of the contract of sale than it was of the lease; and that it was not material to the lease is shown by Keyser’s receipt of rent after the year had expired, and by his declarations as proved by Elizabeth Webb. Construing the paper by the legal import of its terms, and the manifest understanding of the parties, we hold that delay of payment beyond the year stipulated may be compensated by interest,- and did not work a forfeiture of rights. Treating the conditional verdict as an equitable decree which the court ought to have carried into effect, we reverse the judgment, and enter judgment on the verdict, extending the time for the payment of the money therein mentioned to the first day of June next.