Appeal of Holt

Mr. Justice Gordon delivered the opinion of the court, This was a bill in equity, filed by E. R. Payne, W. PL Armstrong, Plenry B. Smith and Edmund Blanchard, partners, trading under the firm name of E. R. Payne & Co., and William Young, against the appellants, PLolt, Harris and Humes, for the purpose of compelling the specific execution of a contract for the sale of lands. On the 24th' of December 1872, William Young, one of the plaintiffs, by articles of agreement, covenanted to sell to Smith, Armstrong, Payne and Blanchard, three several tracts of land, situated in the county of Centre, containing each 415 acres, surveyed on three warrants, bearing date the 29th of April 1793, in the names respectively of Joseph Thomas, Jacob Wain and Nathaniel Levy.- The consideration mentioned in the said agreement was $24,000, which the parties of the second part undertook to pay in certain installments as therein stipulated. Onty part of this purchase-money was paid, hence, the deed was never executed by Young to his vendees. Afterwards, on the 17th of September 1875, Edmund Blanchard, for himself, and for William H. Armstrong, II. B. Smith and E. R. Payne, constituting, as he recites, the firm of E. R. Payne & Co., í>y an agreement, to which he affixed the several names of himself and his partners, agreed to sell to the appellants, “ all the right, title and interest of the said E. R. Payne & Co.” in and to the lands above mentioned, for the consideration of $22,000, payable in four payments of $5,500 each, which payments were to be secured, and the deed delivered, within thirty days from the date of the agreement. The writing thus executed by Blanchard was, on tlie day after its execution, ratified by Armstrong, Payne and Smith. Afterwards, on the 4th of August 1876, the parties above named assigned to William Young, their vendor, and he thus became interested to enforce the contract against the appellants, Holt, Harris and Humes, and, therefore, appears as one jff the plaintiffs in this bill. Concerning the final execution of the paper above mentioned, we find, from the master’s report, the facts to be as follows : Within the thirty days no movement was made by either of the parties looking to a consummation of the agreement; but about the time of the expiration of the period just mentioned, J. IP. Holt went to Bellefonte for the purpose of executing the necessary papers and getting the deed, but failed to see Blanchard, who seems to have had this business in charge on the part of the firm. Shortly after this, Blanchard wrote to Holt, indicating a day for meeting, on which day Holt again appeared, but failed to find Blanchard. In the meantime, the defendants — 269 — liad taken possession of the premises, and during tlie winter and spring following, cut and removed therefrom some 76,704 cubic feet of white pine timber, the stumpage of which, as the master finds, was worth $3,068.16'. Again, about the last of May or first of June 1876, the defendants made another attempt to close up this contract with the plaintiffs. Several days before the first of June, Harris notified Blanchard that Holt would be prepared at that time “ to fix matters up,” but Blanchard answered that at that time he would be in Washington. Nevertheless, on the day thus appointed, Holt, Harris and Humes appeared at Blanchard’s office with the money and bond necessary for a tender of performance on their part; but neither of the plaintiffs was then present. Finally, on the 3d of June, tender was made to Blanchard of $5,742, the payment then due, with a bond to secure the remaining payments, and, at the same time, demand was made for the deed. Blanchard declined to take the money, for the reason that he was not ready to make the deed. The defendants then, through Harris, informed him that they elected to rescind the contract, and that they then and there surrendered the possession of the land. At the same time a tender was made of $1,825 for the timber cut upon, and removed from, the premises. On the 7th of June a like tender was made by Humes to Payne, and, at that time, Payne expressed his willingness to receive the money, but said they were not ready to deliver the deed, as it was to come through Young, and that it would be ready on the following Friday. To this Humes answered, that they expected the deed to come from E. R. Payne & Co., and if they were not ready to make it they would rescind the contract. He also stated that they, the defendants, had restored the possession of the land, and tendered payment for the stumpage. Then, on the 15th of July following, the plaintiffs tendered to the defendants two deeds, one from William Young to'E. R. Payne & Co., the other E. É. Payne & Co. to the defendants. These deeds were both dated June 26th 1876, and purported to convey the land described in the contract. This tender was refused for two reasons : — (1) That the whole title to the land was not in Young; (2) That the premises were incumbered by judgments against Blanchard and Armstrong, individual members of the firm of E. R. Payne & Co. The above embraces a brief statement of the transactions of the parties contestant down to the 15th of July 1876, and we now turn to the defence of the appellants as found in their answers, and to the exceptions taken, by them, to the decree for specific performance as entered by the court below. These answers assume four distinct points of defence, three of which — 270 — have been revealed in the preceding statement, viz.: — The rescission of the contract; the want of a full title in Young, and the incumbrance of the lands by the judgments against Armstrong and Blanchard. The fourth point is, that these tracls of land which the plaintiff’s agreed to convey, are so interfered with by other surveys that, as to a large portion of them, the plaintiffs can make no title. The first two of these points cannot be sustained. Had the defendants within, or at the end of, the thirty days specified in the contract, insisted upon an execution of it or the alternative of a rescission, on a refusal of the first they would have been entitled to the second, but in that event they must have withdrawn from the possession of the land. But they did no such thing. Whilst they at that time offered to fulfill their'' part of the contract, and demanded the deed from the plaintiffs, they did not propose to rescind, but continued to occupy the laud, and to cut the timber growing upon it. When, therefore, afterwards, in June following, they made their tender, announced their withdrawal from the possession of the premises, and demanded a deed, or the alternative of a rescission, they were bound to give the plaintiffs a reasonable time within which to comply with their part of the contract. The appellants could not, at that time, fall back upon the time fixed in the agreement for performance; that time had gone by, and they had by their own act, by continuing their possession, elected to treat the contract as of force. After this they could not abrogate this contract until, on full notice of their intention, and after the expiration of a reasonable time for performance, their vendors had failed to meet their agreement. But in June, 1876, when the defendants made their tender and demanded a rescission, they knew the plaintiffs were not prepared to make a deed; that a conveyance must first be made from Young, who, as appears from the assignment, resided in the county of Montgomery, and we, therefore, think, with the learned master, that the tender of the deeds on the 15th of the succeeding month was in time, that the delay was not unreasonable, and that a rescission cannot be pronounced on this ground. As to the exception taken to Young’s title, in the second point, we do not think it can be sustained. The only defect alleged is that the deed of Hand and Oosten was not delivered until after Hand’s death. But the equitable title was then in Y oung ; he had paid the purchase-money in full; hence his vendors held the legal title in trust for him, and the deed having been executed for the purpose of delivery, in pursuance of the legal duty devolving upon them, its delivery after Hand’s death by Oosten, the tenant in common with Hand, or by Post, in whose — 271 — Lands it was left, was a good and lawful delivery : Stephens v. Huss, 4 P. F. S. 20. As to the effect of the judgments against any or all of the appellees, as liens upon the lands sold, we cannot adopt the opinion of the learned auditor. Under the articles with Young, of the 24th of December 1872, the equitable title vested in Smith, Armstrong, Payne and Blanchard as tenants in common; hence, a judgment against either, during the time of the existance of the title in them, would bind his interest. The question is not one of trust, but a purely technical one of title. These parties could receive the title in such form as they saw fit; it might be, as it in fact is, to them as tenants in common, or it might be to the partnership. As for themselves there was no particular difference. In either case they might use the land as part and parcel of the assets of the firm, or they might divide it among themselves and hold it in severalty, but as to judgment creditors and mortgagees the face of the conveyance determined the character of the title, and, as to these, it could not be altered by parol. All the parol testimony produced in this case may be admitted and yet not alter the result. Let it so be that the property was bought for the use of the firm; that whatever money was paid on account of it was partnership money, and that it was actually used by and for the firm, yet all this'is but a restatement of the facts as found in the case of Ridgway, Budd & Oo.’s Appeal, 3 Har. 177; the appeal of the Second National Bank of Titusville, 2 Nor. 204, and Geddes’ Appeal, 3 Nor. 482. In the case last named the title was an equitable one, and it, therefore, covers the case in hand in every particular. It is indeed true, as in Erwin’s Ap., 3 Wr. 535, that when one partner buys land with the firm money, and takes the title in his own name, there is a resulting trust to the firm. And in Lefevre’s Ap., 19 P. F. S. 122, Mr. Justice Sharswood, in commenting upon Erwin’s Ap., says, that the same result must follow logically where, in a firm of three or more, two of the partners or any number less than the whole, make such purchase with partnership funds. Had, therefore, the name of Blanchard been omitted from the articles with Young, the conclusion of the auditor might be sustained. But it was not omitted. Young’s agreement is to. convey to every member of the firm, hence, there can be no resulting trust, since no partnership trust was violated. It is true, Blanchard did not sign the agreement, but this did not affect his right as a tenant in common; that was a matter for Young; if he chose to accept the covenant of one or more of his vendees in lieu of all, that was his own business, and that did not alter his agreement to make title to the whole number of the pez’sons named. Blanchard might have repudiated — 272 — the contract, so far as he was concerned, but this he did not do ; on the other hand, he ratified and approved the act of his associates by joining in the agreement to convey to the appellants. It follows, that provision should have been made in the decree of the court below for the payment of the first three judgments against Blanchard, as found on the master’s list, amounting, in gross, to the sum of $2,129.83, for these judgments, having been entered prior to the date of the sale to the defendants, were a lien on the land. The other judgments, having been entered after the sale, were a lien only on the purchase-money owing to the plaintiffs, and require no consideration, since the decree properly awards the whole of that purchase-money to the superior lien of Young. We now come to the final question presented for our consideration, that is, the character of the title tendered to the appellants, and which, by the decree of the court, they are required to accept. The appellants contend that it is of a character so defective and doubtful that equity will not compel them to accept it, and in this we think they are correct. We regard Young’s title as unmarketable and such as no prudent vendee ought to accept. We need not here stop to analyze the contract between Payne & Co. and the defendants, for if it is as the appellees contend, but an assignment of the right, title and interest of that firm in the Young contract, the defendants, nevertheless, stand in the place of Armstrong, Smith, Payne and Blanchard, and have a right to such title as is provided for in that contract. On this assumption, and by virtue of the assignment to him of the contract first above mentioned, Young becomes the immediate vendor of the appellants. But Young, by his agreement, undertook to execute a good and sufficient deed, or deeds, in fee simple, for the premises described, and such a deed or deeds, must he execute and tender to the defendants before he can, by the present process, compel them to pay the purchase-money. Under this view of the case, the refusal of Blanchard to warrant against the Merriman claim, becomes of no moment, for there was no such refusal on part of Young. He was bound to make a good title to the whole of the premises, and it is his title which, if the decree of the court below were enforced, the defendants would be obliged to take. But the Merriman, or what is a better designation, the Jesse Wain interference, does, if we are to believe the evidence, affect Young’s title as to a material part of the Nathaniel Levy tract. These tracts, with others of the same block of surveys, known, from the leading warrant, as the Moore Wharton block, were surveyed at the same time, hence, the location of the one cannot have preference over the other. The west — 273 — line of the Levy and the east line of the Wahl are found upon the ground, and thus the location of the tracts are definitely fixed. But, by actual measurement, the distance between these lines falls short of the official call some eighty-six rods, hence, each of these tracts must lose forty-three perches, the one from its east and the other from its west side. As this reduces the Levy tract about one-seventh of its whole amount, this loss, especially if the land were timbered, may be regarded as material. We must, also, differ with the court below as to the interference of the Thomas P. Wharton tract with the Joseph Thomas. The master concedes that the evidence largely preponderates in fávor of the defendant’s location of the Pugg tract, the adjoinder of the Wharton on the south. To us, indeed, it seems that the north line of this tract, running from the pine stub to the pine witness, is well established. If, however, this be so, then all that is necessary for the establishment of the defendant’s location of the Thomas P. Wharton tract is the fixing of the original position of the sassafras, the common official corner of the Pugg, Canby,“Wharton and Lewis tracts. To us, this would not seem a task of much difficulty. Following the well-marked line from the pine stub, the north line of the Pugg and Canby tracts, at the official distance for the north-east corner of the Pugg, the pine witness is found, and if this pine is indeed a witness, and is found at the proper position for the north-east corner of the Pugg, and the north-west corner of the Canby tract, it must surely be a witness to that corner, and as the official survey declares that the corner there made, at the time of the survey, was a sassafras, the conclusion is next to irresistible that that is the place where the sassafras once stood. Taking this point as settled, and we have established the south line, and the south-east corner, of the Thomas P. Wharton, and from these the location of this tract is readily determined. Moreover, whilst calls for adjacent surveys, and the notation of waters are not the best evidence of a survey, they are, nevertheless, corroborative, and may help to settle" a doubt, and, in this case, both these favor the location contended for by the defendants. Thus, whilst we do not undertake to pronounce positively .upon this question, a question that can only be definitely disposed of by a jury, yet without hesitation we can say that Young’s title is not good and marketable, or such as the defendants are bound to accept. The decree of the court below is now reversed and set aside, and the bill of the plaintiffs dismissed at their costs.