Meck's Appeal

Mr. Justice Paxson delivered the opinion of the court, May 2d 1881. This case comes under no recognised head of equity jurisdiction. It is not alleged that there was either fraud, accident or mistake in connection with the written instrument executed by Samuel Meek and Isaiah Meek, and bearing date the 10th of December 1863. It is not denied that Isaiah Meek entered into possession of the farm specified in said agreement and in pursuance thereof, and that Catharine Meek, his widow, and his minor children are in exclusive possession of a part of the premises, and a disputed or concurrent possession of the remainder. The plaintiff seeks, and the court below ordered, that the agreement referred to be delivered up to be cancelled upon the ground that it is a blot upon the plaintiff’s title. That it is such blot may be conceded without admitting plaintiff’s right to have it removed in this summary manner. The object of the proceeding is patent. With the agreement destroyed by a decree in equity, the road will be open for a recovery of possession by an action of ejectment. The defendants could not then use it as a shield to defend their possession. In other words, this bill is a mere tender to a writ of ejectment. We are of opinion that it cannot be so used. The attempt to convert the deed into a last will and testament does not help the matter. The question may well be asked, whose will? It is a contract inter partes, and in this respect differs from Turner v. Scott, 1 P. F. Smith 126, and other cases in which a conveyance of land intended to take effect after the death of the grantor, was held to be a testamentary disposition of the property. Here the contract was expressly stated to be for the sale and purchase of the farm for a price agreed upon ; the purchase-money to be paid after the death of the vendor, and the title to be made by his executors and administrators; in the meantime the vendee to occupy the premises under a stipulated rent. We will not anticipate questions that may hereafter arise by now passing upon the legal effect of this paper, and it is referred to as showing that the defendants having 'entered into possession under such an agreement without either fraud, accident or mistake, have at least the right to have their case passed upon by a jury in a common-law proceeding. The decree is reversed, and the bill dismissed with costs.