Bell v. Kennedy

The opinion of the court was delivered by Mr. Justice Mercur, It is not necessary to discuss separately the various specifications of error. A few general principles rule the case. The money in contention was paid on a parol contract for the purchase-of lands. In consequence of having afterwards [220] ascertained tbe title to be defective, this action was to recover the money thus paid. The lands were situate in Missouri, and were represented to contain eleven thousand two hundred acres. Both parties to the contract resided in Pennsylvania. In the making thereof one Leslie acted as agent for Dilworth. He represented that the latter had a good and perfect title to the lauds free from incumbrance, and was a man of wealth and perfectly - responsible. Relying on this statement, and the assurance that a clear title should be made to him by good and sufficient deeds, Kennedy agreed to buy the lands and afterwards paid part of the purchase money. Dilworth was a man of wealth : but in fact had no regular paper title to the lands. It appears he had in his possession fifty-one patents issued by the United States to certain patentees therein named, and deeds for the same lands, executed by the patentees, without the names of any grantee therein. After the making of the contract the name of Leslie, who was insolvent, was written in the fifty-one deeds as grantee, and,he and his wife executed deeds for the purpose of conveying said lands to Kennedy. Thus there was no conveyance from Dilworth. The deeds contained no covenant from him. When the agreement was made Leslie exhibited “ a plan-book ” which he stated contained a full description of the lands. The descriptions in the deeds executed by Leslie did not in several respects correspond with those in the “ plan-book.” The number of the township was changed in some few cases: in other cases a different quarter of the section was substituted: in several townships named a portion of the lands was wholly omitted. The deeds were to be deposited in the Commonwealth Bank. Thus defectively executed they were there deposited ; and on a cursory examination of them by Kennedy he made a payment. Afterwards he discovered the title of Dilworth was defective, and that the deeds were not executed according to the agreement. lie therefore refused to accept them, and brought this suit to recover a portion of the purchase money which he had paid. Thus the case involves the validity of the title held by Dilworth, and the sufficiency of the conveyance prepared for Kennedy. It may be conceded, in case a deed, duly executed iu other respects with a blank left therein for the name of the grantee, be put in that condition in the hands of a third person with verbal authority to fill up the blank in the absence of the grantor, and to deliver the deed to the person whose name is inserted as grantee, and the deed be so filled and delivered, it [221] becomes a valid deed. It is not necessary to consider whether Dilworth held those deeds under an agreement with the grantors which would enable him to perfect the title in himself. If lie was so authorized he did not exercise the power. Ilis name never appeared in the deeds as vendee. It appears, however, that he did not acquire his equitable interest directly from the patentees but from one Davis for whose benefit, it is alleged, the lands were located. The jury having found that the deeds from the patentees wore held by Dilworth in blank when the agreement was made with Kennedy, and that the latter did not know that fact, it follows that Dilworth did not hold a perfect or legal title to the lands, ' nor did he hold an equitable title under any conveyance made to him. Not only was Kennedy ignorant of the fact, that the deeds from the patentees were in blank : but the jury have further found that Kennedy did not agree that the name of Leslie as vendee should be inserted therein. It is therefore manifest that Dilworth did not have a good or perfect title to the lands at the time of the agreement, nor afterwards. Dealing with him as the owner thereof, Kennedy expected, and hada right to require, a deed directly from him, conveying that perfect title which he alleged was vested in him. Kennedy was entitled to all the security which Dilworth’s undoubted wealth would give, in case of a breach of the covenants in the deed. Thus the defective title held by Dilworth -and his refusal to convey according to his agreement left his. part of the contract wholly unperformed. This gave Kennedy a right to rescind the agreement and recover the money which Dilworth had obtained under a false assertion of a perfect title. If this action were in affirmance of the contract, it would be necessary to show a readiness or willingness on the part of the vendee to perform; but it is in disaffirmance thereof by reason of the inability and failure of the vendor to perform. His performance was a condition precedent to his right to require any payment from the vendee. The latter therefore had a right to recover the money which he paid under a misapprehension, and which the vendor was not entitled to receive. Moore v. Shelly, 2 Watts 256; Robison v. Tyson, 10 Wright 286 ; Crossgrove v. Himmelricli, 4 P. F. Smith 206. A careful examination, of the whole record discloses no suffcient causejfor reversing the judgment. Judgment affirmed.