Cadwalader v. Berkheiser

The opinion of the court was delivered by Thompson, J. — The plaintiff brought his ejectment on his legal title, and it became what we denominate an equitable ejectment, because the defendant set up a contract for the purchase of the land, and interposed an equity against his recovery, in the nature of a bill to restrain a recovery at law. The time for the payment of the purchase-money, by the original articles, had transpired before suit brought. There was, therefore, no contract relation existing, to prevent proceeding on the legal title. The plaintiff had a right to do so, and thus compel the defendant to interpose his equity, if he relied on it. This equity was his contract for the land, and tender on the trial of the balance of the purchase-money. This he did. If he had not done so, the plaintiff would have been entitled tó a conditional verdict, and costs, of course, on the contract being set up. Instead of this, the defendant not only set up his contract, but brought the money into court, and defeated the plaintiff’s right to a conditional verdict, by doing all [45] tbafc such, a verdict could bave required of him. But this was only done on the trial. Up to this time, nothing stood in the way of plaintiff’s recovery. Till then, he was rightfully using his title. If so, it follows, of course, that up to that stage of the proceedings, he was entitled to costs. If the defendant had tendered or offered payment before suit brought, and kept it up by bringing the money into court, the plaintiff would not have been entitled to a judgment of any kind. For, going on, after that, would have been an effort to recover against an equity he was bound to know would defeat him. The receipt of the 9th of January 1849, did no more than to modify the original contract, by a reduction of the price, and a change of existing covenants into mutual and dependent covenants ; and, in such case, it has been often decided, that, although in an action of covenant, the plaintiff would have been bound to have tendered a deed before suit brought, in ejectment it is not so; 8 W. & S. 172; 4 Barr 254; 2 Id. 295; and in many other cases that might be cited. But the plaintiff was entitled to costs; for, in addition to the tender of the purchase-money on the trial, it should have included a sum sufficient to cover the costs which had accrued. This not being done, the court should have instructed the jury, that their verdict should be for plaintiff, for nominal damages and costs. This is the only ground of reversal in the case. Judgment reversed, and a venire de novo awarded.