Eichelberger v. Gitt

Mr. Justice Trunkey delivered the opinion of the court, November 12th 1883. Henry Gitt conveyed the land to Abdiel E. Gitt, on December 21st 1853, “subject to the payment of five thousand nine hundred and fifteen dollars, the purchase money.” These are apt words for imposing a lien, the grantee took the estate, conditioned for the payment of a certain sum, and performance of the condition may be enforced by action of ejectment: Strauss’ Appeal, 49 Pa. St. 353. When A. F. Gitt sold the land, the purchasers saw on the face of the title the condition upon which it was held by the vendor, and they cannot complain of want of notice. The formal receipt for the purchase-money, being without dato, is presumed to be of the date of the deed, and, therefore, is not prima facie evidence that the lien so plainly expressed, was satisfied ; it is of no greater value than the acknowledgment of payment of the consideration written in the body of the deed. If the purchasers had made inquiry of the proper parties they could have learned whether the money was actually paid, and they stand in'the vendor’s shoes, holding the land as if they had bought with express notice of the amount remaining unpaid. The rule is, that whatever puts a party on inquiry amounts to notice, where the inquiry becomes a duty, as in the case of a purchaser of land, and would lead to a knowledge of the requisite fact by the exercise of ordinary diligence and understanding. Possession has been held by A. E. Gitt and his grantees under the terms of the deed from Henry Gitt, and the statute of limitations is as far from applying, as if they had held under articles of agreement for sale and purchase of the land. There is no pretence of evidence of possession other than upon the condition named in the deed. While holding as purchasers, subject to payment of the purchase-money, they cannot acquire a title under the statute, and the defendants first point was rightly refused. It is true, as the defendants allege, that the contract dated March 1st 1849, between Henry Gitt and A. E. Gitt, was merged in the deed, and that no action will lie upon it. But it is pertinent evidence upon the question whether the bonds [73] upon wliicli tlie plaintiff founds his action, were part of the purchase money. The contract and bonds are of same date, it provided for such bonds, that they should be a lien on the land till paid, that two thousand dollars should be paid at the distribution of Henry Gift’s estate, and, contingently, that A. F. Gitt should have so many of the last bonds as would equalize his legady with the others. In connection therewith the will was competent, not to show a lien on the land, but to show the legacies, and to be followed by the acts of A. F. Gitt as one of the administrators cum testamento annexe. He made and filed an inventory of the personal estate of Henry Gitt, deceased, which included these bonds. In the Auditor’s report of distribution, confirmed April lltli 1861, all the bonds were taken into the account and settled, except the ten in controversy ; and there is oral testimony that in 1861 he gave-these ten to E. O. Gitt, trustee of Mary Ann Gitt, one of the legatees of Henry Gitt, deceased. The -accounts and distributions of the estates of Nancy Gitt and Mary Ann Gitt were received, not to charge A. F. Gitt, but to show the sums allowed him as credits upon the bonds, the subject of this action. ’ A. F. Gitt was a party to the inventory, administrator’s account, and proceedings before the Auditor in the settlement of Henry Gift’s estate. We are not convinced that there was error in the receiving of testimony. It rested on the plaintiff to satisfy the jury by sufficient evidence that the bonds were a part of the purchase money and the sum that remained unpaid. Nor was it error to refuse the defendants’ fourth point. The question of fact was properly submitted to be determined upon the oral and written evidence. The agreement recited in the Auditor’s report, relative to the cancellation and giving up of bonds for the purpose of final distribution of Henry Gitt’s estate, cannot be treated as notice to purchasers of satisfaction of the lien for purchase money, for the report does not show that all the bonds were satisfied. The lien created by the deed was for a certain sum. Other evidence shows that bonds were given for same debt, payable •at different dates, the last in 1871. Eleven of the bonds, amounting to twenty-one hundred and fifteen dollars, including two that are in this suit, became due within twenty-one years preceding the bringing of this action. In 1861, A. F. Gitt accounted for and settled all the bonds, except the ten he had given to the plaintiff. Within twenty-one years the credits were made upon the bonds held by the plaintiff for the distributive shares due A. F. Gitt in the estate of Nancy Gitt and the estate of Mary Ann Gitt. If it be conceded that the Act of April 27, 1855, P. L. 368, should be so liberally construed as to apply to all kinds of charges upon real estate to which [74] the ordinary presumption of payment applied, it cannot avail the defendants as a bar to the plaintiff’s recovery. The period of limitation runs from the time the charge was due and payable'. If it began against each bond when it became due, the evidence of claim by and of payment to E. O. Gitt on account of the bonds which he held, is too strong for the court to rule that any of them are barred by the statute. Had the court charged, as the defendants requested, that there can be no recovery on the bonds due twenty-one years before the writ issued, it would have been error, for that would have taken the question of payment or claim on account of the bonds, within said time, from the jury. Judgment affirmed. The time for payment of the money extended till January 21st 1884.