Reitz's Appeal

The opinion of the court was delivered, by Thompson, C. J. — After a careful consideration of the elaborate report of the master in this case, and the review of it by the learned judge below, we agree with the latter, that the notice of the 21st of December 1867 amounted only to an engagement by Fisher, pursuant to the deed of the 5th of April 1867, to purchase from Reitz the property sold and transferred by him to Reitz by that deed, on the 1st of April 1868. It was not a present purchase, so as to vest the property in him. That it was to be Reitz’s [165] up to that time, the entire transactions between the parties show. Fisher had the right to elect to buy it on that day; that that engagement might be consummated on that day, depended on circumstances, the essential circumstances, of payment and satisfaction. Without that, or something to stand in lieu of it, Reitz would not be hound to part with any portion of the property. The notice, therefore, made no transfer of title to any part of the property; it is to be controlled in its operation to the right reserved to purchase, and that right was to be exercised on the 1st of April 1868. The notice was a preliminary to the exercise of the right, and no more. It was then, or at that time, the ownership of the property was to change, if ever. A creditor of Fisher could not have levied and sold the property as Fisher’s prior to that time. If it did not exist, that is the personal property, on the 1st of April, Fisher could not purchase it, and if it did not exist in the form it was when the reservation for the repurchase was made, he was not bound to take it, and the notice in accordance with the reservation did not alter this essential and implied condition. There being no contract for the sale of the property in fact, or intended, the title did not pass, so as to draw to it possession, and there being no actual delivery to Fisher by Reitz of the land in question, it remained at the risk of Reitz until an actual sale should be consummated. The title in Reitz was not disturbed by the notice — if it was, and it should be held to have passed the property to Fisher, a consideration would be altogether wanting. Reitz could not be compelled to part with his property without this. This is but a mode of illustrating the idea that the whole matter was to remain in fieri until the 1st of April 1868. The eases of Winslow, Lanier & Co. v. Leonard, 12 Harris 14, and Chamberlain v. Smith, 8 Wright 431, clearly mark the distinction between a contract to purchase at a future time, and a complete and perfect contract where everything is done but the transferring of possession, which is to be done at a future time. In the former case no title passes, and in the latter it does, if nothing is left to be done but to hand over the thing purchased. We think the learned judge took the true view' of the controversy between the parties, and was right in holding that unless the complainant could transfer the entire subject of the reservation, substantially at least, the respondent could not in equity be required to receive and pay for any of it. We do not think it necessary to elaborate what has been so well expressed by the learned judge, and have contented ourselves with this simple view, to express our approbation of the decision below. Decree dismissing the bill affirmed, and this appeal dismissed at the costs of the appellant.