Seylar v. Carson

The opinion of the court was delivered, May 13th 1872, by Williams, J. The evidence set out in the bills of exception, constituting the first two specifications of error, was properly received. If it was not admissible for the purpose of showing the plaintiff’s confirmation of the sale to Carson — a point presently to be considered — it was competent as tending to rebut the evidence given by the plaintiff to establish the fraud with which Carson was charged, and to corroborate and strengthen the defendant’s evidence in disproof of the charge. The plaintiff’s acceptance of the lease was- an implied admission that the land belonged to Carson and McNaughton, and that he had no title to it as owner; and the defence of a subsequently acquired title, which he set up under oath to defeat these proceedings against him under the Landlord and Tenant Act, was inconsistent with the title under which he claimed to recover the property in this action. The evidence, therefore, had a direct bearing on the question at issue, and was properly allowed to go to the jury. But the court should have affirmed the plaintiff’s third point without qualification. If Carson was guilty of the alleged fraud in the purchase of the property, then, whether the sale was absolutely or relatively void, it was not necessary for the plaintiff, as the authorities show, to pay or tender him the purchase-money which he paid for the property before bringing suit for its recovery: Gilbert v. Hoffman, 2 Watts 66; Smull v. Jones, 1 W. & S. 128 ; Jackson v. Summerville, 1 Harris 359 ; McCaskey v. Graff, 11 Id. 321; Hogg v. Wilkins, 1 Grant 67; Sharp v. Long & Brady, 4 Casey 433. It was therefore error to instruct the jury that “ there must have been payment or an offer to pay ” in order to enable the plaintiff to maintain the action; and the error is [87] repeated in the general charge, and pervades the answer to the plaintiff’s fourth point. But the answer to this point is complained of on another ground, which it is proper that we should consider, as the cause goes back for a new trial. The point, in the form it was put, is objectionable and the court was not bound to answer it specifically. It asked the court in effect to determine both the facts and the law of the case, and could not have been affirmed without a binding direction to the jury. It was their province to determine what acts or declarations of the plaintiff were proved in the case, and if specific instructions were desired upon the facts which the evidence tended to establish, they should have been hypothetically stated, and the court asked to declare the law arising upon them if found by the jury to be true. If, then, the plaintiff was not entitled to a specific affirmance of the point as presented, was there any error; other than that already suggested, in the general! answer that was given to it ? The court instructed the jury in substance that if there was actual fraud in the sale which rendered Carson a trustee,ea; maleficio for the plaintiff, the latter might still, by his subsequent acts and declarations, confirm the sale; and if he acquiesced in Carson’s title and took a lease from him,- he is barred; but if he went in under Carson on the agreement that the rent was to be applied to the interest of the purchase-money paid by Carson, and the excess over the interest to the reduction of the principal, then his tenancy was not inconsistent with his claim, and does not prove any abandonment of it. Whether this instruction is to be regarded as erroneous or not, depends on the view to be taken of the sale, if Carson was guilty of the alleged fraud. If the sale was absolutely void to all intents and purposes, if no title whatever passed by the sheriff’s deed, if it remained in the plaintiff after the sale as before, and the same as if no deed had been executed, as declared in Sands v. Codwise, 4 Johns. 536, and in Gilbert v. Hoffman, 2 Watts 66, and kindred cases, then it follows that the sale was incapable of being confirmed by any acts or declarations of the plaintiff, and that no title could pass to the sheriff’s vendees without a contract founded on a new and sufficient consideration and so far executed as to take it out of the statute of frauds : Jackson v. Summerville, 1 Harris 359. But if the sale was not absolutely, but only relatively void, then, as ruled in Piersoll v. Chapin, 8 Wright 9, it was capable of being ratified and confirmed without a new contract founded on a new consideration. And it seems to us that this is the more reasonable and better opinion, and that the true distinction is there taken between contracts absolutely void and those which are relatively void or voidable. The principle on which the distinction rests, seems to be this: that is absolutely void which the law or the nature of things forbid to be enforced at all: as contracts to [88] do an illegal act, or omit a legal public duty ; contracts in a form forbidden by law, or made by persons having no legal power or capacity to contract: as bonds of married women.. That is relatively void or voidable which the law condemns as a wrong to individuals and refuses to enforce against them: as contracts tainted with fraud or any other kind of wrong against persons. A contract that is absolutely void, cannot be ratified or confirmed, for that would be giving sanction and validity to an agreement which the law declares illegal and refuses to enforce. But a contract relatively void, though it cannot be enforced against the defrauded party, is not so void “ as to vitiate a title under it, as against a bond fide purchaser for value and without notice; or to prevent the party intended to be injured by it from renouncing the privilege which the law allows him of rejecting it altogether, or from ratifying it and thus making it his own; * * * or so as to need any other or further consideration than that which he is to receive or may retain under the contract by adopting it.” The doctrine of this case has been recognised and followed in subsequent cases; Negley v. Lindsay, 17 P. F. Smith 217 ; and we see no reason for departing from it. There was no error in instructing the jury that if there was actual fraud in the sale, the plaintiff might still, by his subsequent acts and declarations, confirm it. The only remaining question to be considered is, whether the acceptance of the lease, under the circumstances, was sufficient evidence of the plaintiff’s confirmation of the sale to go to the jury ? The case of Brown v. Dysinger, 1 Rawle 408, in effect decides the question. There a purchaser at sheriff’s sale openly declared that he was bidding the property for the plaintiff’s ancestor, who subsequently took from him a lease of the premises, and it was held that whether his acceptance of the lease amounted to a waiver and abandonment of his claim, was properly left to the decision of the jury. Though this case has been greatly criticised on other grounds, and the dissenting opinion of Tod, J., is now regarded as a sounder exposition of the law arising on the facts of the case than the opinion of the majority, yet its ruling in this respect has never been doubted or questioned. But it is said that it was a case of legal and not of actual fraud. If this were so, the opinion suggests no such distinction in support of the ruling, and it is not easy to see why it is not just as applicable to a case of. actual as of legal fraud. Besides, a careful examination of the case will show that in one of its aspects it was regarded as a case of actual fraud. “A majority of the court,” said Mr. Justice Smith, “are of the opinion that the parol evidence was properly received, and that there was proved, not only a fraud in David Walker, but a trust which, though not declared in writing, was valid notwithstanding the act of frauds and perjuries.” And Gibson, C. J., before whom the [89] case was tried in the Circuit Court, in delivering tbe opinion in Kisler v. Kisler, 2 Watts 825, said: “Such a trust,” referring to a trust ex maleficio, “ seems to be recognised in Lloyd v. Spillet, 2 Atk. 148 ; Peebles v. Reading, 8 S. & R. 492; and was actually enforced in Brown v. Dysinger, 1 Rawle 408. It arises from the artifice of tbe party to be affected in procuring tbe title, and not, as Mr. Justice Tod supposed in tbe last-mentioned case, from the' contract;” and so in Morey v. Herrick, 6 Harris 128, it was said 'the principle on which Brown v. Dysinger was decided is, that tbe defendant was guilty of such fraud as operated to convert him into a trustee ex maleficio for him who bad been deceived. It is then a ease directly in point, and shows that tbe question whether tbe acceptance of tbe lease under tbe circumstances amounted to an affirmance of tbe sale, was properly left to tbe jury. And it seems to us that on principle tbe submission was clearly correct. If tbe plaintiff, as we have seen, might elect to affirm or disaffirm tbe sale, why should not bis acceptance of the lease, if not otherwise explained, be regarded as a recognition of tbe purchaser’s title and an affirmance of its validity under tbe sale ? Why accept tbe lease if be did not intend to recognise their title ? And .if be did, why should be not be bound by bis election after so long acquiescence ? It follows that there was no substantial error, apart from that already noticed, in tbe answer to tbe plaintiff’s third point. But for tbe error in instructing tbe jury that tbe plaintiff was bound to pay or offer to pay tbe purchase-money paid by Carson before bringing suit, tbe judgment must be reversed. We regret this tbe more as the verdict is entirely satisfactory, and tbe error probably did tbe plaintiff no barm. Judgment reversed, and a venire facias de novo awarded.