Stephen's Appeal

Mr. Justice Mercur delivered the opinion of the court, This bill was filed to compel a reconveyance to Mrs. Stephen of a certain farm which she and her husband.had conveyed to the appellee Emerick. The conveyance had been made on an exchange of lands between the parties. On the farm conveyed by the appellant was charged a right of dower, amounting to $1334. On a large body of lands of which the mill property, conveyed by Emerick to Mrs. Stephen, formed a part, he had previously given to one Long a mortgage for $4100. In the exchange the appellants were to either give Long a mortgage for the $1334 or pay him that sum, so as to secure Emerick against the payment of the same, and Emerick was to remove the residue of said mortgage. Neither party fulfilled the contract in relation to the mortgage. Long proceeded on his mortgage and sold not only the mill property conveyed to Mrs. Stephen, but also the other lands which it covered, retained by Emerick. Having thus lost the mill property which she acquired from Emerick, she now seeks to enforce a reconveyance of the farm which she conveyed to him. - The master to whom the case wTas referred was of the opinion that Emerick fraudulently withheld from her a knowledge of the existence of this mortgage lien on the mill property. On exceptions filed the court below1 reversed that finding and say : “ There is not a line in the whole testimony that will justify the inference of any concealment, either by word or act, on the part of Emerick. There is nothing said or done by him to mislead and calculated to lull her into security as to the title. There is not the shade of evidence to justify the slightest suspicion of collusion between him and her husband. We hold that up until the execution and delivery of the deeds the evidence warrants the conclusion that everything was open and fair, and understood by the one side and by the other.” A careful examination of the evidence-fails to convince us that the learned judge erred in his conclusion in regard to the facts. The controlling facts are uncontradicted. 1. The mortgage was duly recorded. This record was constructive notice to her, equally as effective as actual notice: Evans v. Jones, 1 Yeates 172; Kuhn’s Appeal, 2 Barr 264. 2. Her husband acted as her agent in the whole transaction. He had express and direct notice of the mortgage. He acquired it while acting as her agent in making the exchange of lands. With his actual knowledge of it thus obtained from Emerick, the bargain was closed and the deeds were executed. She ratified and confirmed the contract of her husband and agent. This w'as again constructive notice to her. His act became her act. Notice to him in the particular transaction was notice to her. 3. She failed to fulfil her contract. She did not pay the $1334 on the mortgage, nor did she in any manner discharge either the [207] mill property or the residue of Emerick’s land from so much of the mortgage. Through the omission of each party to perform his and her contract respectively, the lands of both parties were sold. We therefore discover no sufficient equity in her case, to give her a right to compel a reconveyance of the farm which she had conveyed to Emerick. No fraud or mistake, or turpitude of consideration and circumstances entitling her to relief on the principle of quia timet, are proven. Nothing less than one of these clearly established would justify the court in ordering the rescission of an executed contract: Brightly’s Eq., § 238; Delamater’s Estate 1 Whart. 362; Yard v. Patton, 1 Harris 278. It is not necessary now to determine whether Emerick would have protected her mill property from the other part of the mortgage, in case she had paid or discharged the part she had assumed to discharge. It is sufficient to say that she did not execute the contract through any mistake of facts ; that Emerick was guilty of no fraud; that she failed to fulfil her contract, and cannot reinstate him in his former rights: Flynn v. Allen, 7 P. F. Smith 482; Babcock v. Case, 11 Id. 427. The cases of Bishop v. Reed, 3 W. & S. 261, and Heacock v. Fly, 2 Harris 540, were cited on the argument in support of the bill. Neither one is applicable to the facts of the present case. In the former, the consideration for the conveyance of the land had wholly failed, through no fault of the party asking to rescind the contract; the latter was where the obligation given for the conveyance was void, and each party could be restored to his former rights. In the case at bar, there was not, at the time of the exchange, any defect in the title to the mill property; but merely a pecuniary encumbrance on it: Tiernan et al. v. Roland et al., 3 Id. 441. The appellants had no right to ask for a rescission on the ground of encumbrance, unless they first discharged, or showed a willingness to discharge, that portion of the encumbrance obligatory on them to discharge: Irvin v. Bleakley, 17 P. F. Smith 24. The learned judge was right in dismissing the bill. Decree affirmed, and appeal dismissed at the costs of the appellants.