Murray v. Ellis

Mr. Justice Gordon delivered the opinion of the. court, April 19th, 1886. This was an action of debt brought by Charles E. Ellis, acting trustee of the will of Amos Ellis, deceased, against James J. Murray, to recover purchase money alleged to be due on certain articles of agreement, dated 10th of March, 1884, by which the said Ellis, in consideration of the sum of $21,500, agreed to sell to the firm of Murray & Gill certain real property therein described, free and clear of incumbrances. The vendee agreed to pay, and secure the payment of the sum of money above stated, as follows: “$1,500 or more, at the option of the purchaser, upon the execution and delivery of the deeds for the said premises, and the balance to be secured upon the said premises by a bond and mortgage in the usual form, without state tax, at the rate of five per cent, per annum, payable half yearly, the first payment to be made January 1st, 1885, said balance so secured to be paid at any time within five years.” The vendor covenanted, inter alia, that the title to the said premises, and eveiy part thereof, should be good and marketable. These articles were signed and sealed by Charles E. Ellis, as executor of Amos Ellis, and by James J. Murray, the defendant. Some time after the execution of the paper above mentioned the plaintiff'tendered a deed to the defendant for the property described in said articles, and demanded the money and mortgage as therein stipulated. This deed thus tendered was by Murray submitted to his attorney for examination, who pronounced Ellis’s title defective and not marketable, whereupon the defendant refused performance on his part, and, as a consequence, suit was brought to compel payment of the full sum of $21,500. The issue, then, is upon this single question: Was the title thus tendered marketable — such as a chancellor would compel the defendant to accept? Admitting the validity of the deed [492] tendered to the defendant, then is there nothing in the rulings of the court which is legally incorrect, and we must refuse to sustain the several assignments of error. The court properly rejected the opinion of*William Gorman, Esq., as to the marketable character of the title, for that was a question for the determination of the court on the papers and other facts submitted to it, and the opinion of a witness, however learned, could avail nothing. So the court well held that “ where the purchaser refuses to take the property, pay the cash, and give the required securities, he makes himself liable for the whole amount of the purchase money immediate^.” Also, that, in this case, the damages were to be measured by the price the defendant was to pay. But there was error in attempting to make the verdict conditional. In an action of debt on a covenant, such as we have before us, it is presumed the plaintiff has complied with all the conditions which the contract imposed upon him, and on no other presumption can he recover. He must have tendered a good and sufficient deed before suit brought, otherwise his action fails: Huber v. Burke, 11 S. & R., 237. It would follow that, on the presumption that the plaintiff had complied with his covenants, no subsequent conditions could be imposed on him, except to file the deed, so that the defendant might have it on payment of the purchase money. But of this action of the court the defendant cannot be heard to complain, as from it no injury resulted to him. If he chose not; to comply with the prescribed conditions, he had but to pay the amount of the verdict and costs and take his deed. We cannot, therefore, entertain his exception to this action of the court. The question then recurs, on the first assignment: Was the title tendered to the defendant marketable? — was it free from suspicion? In Hertzberg v. Irwin, 11 Nor., 48, as in many previous cases, we held that a suit to recover purchase money on articles of agreement is in the nature of a bill for specific performance; hence, where the title to the land is doubtful or not marketable the plaintiff cannot be allowed to recover. Let us now turn to the title before us. In the outstart we find that the legal estate never was in Amos Ellis, however it might be with the equity. Edward G. James, the common grantor, conveyed to Thomas Richardson, his heirs and assigns, by deed dated March 20th, 1865, but some seventeen days before this time Richardson had deceased, so that the title passed directly to his heirs, and were it not for his will their title would be complete and perfect. When, therefore, Stephen S. Price, executor of Thomas Richardson, on the 7th of October, 1867, conveyed to Amos Ellis, he had nothing on which the conveyance could operate but an equitable estate, [493] if that, for whether so much vested in him we do not know, since there is nothing in the case to inform us. To be sure, we may so assume, but as against Richardson's heirs our assumption comes to nothing, for even our judgment in this case would not bind them. How is this question to be settled ? Only by the acquisition of the legal title from these heirs, for there is no other way to put this matter beyond doubt. But ■whose business is it to remove this doubt if not his who covenanted to convey to hiá vendee an undoubted title? Let it be admitted that the equity vested in Richardson during his lifetime. Is the title therefore marketable with the legal estate outstanding? What careful conveyancer would so say? It will not do to tell the man who has money to loan, or who is about to purchase, that this imperfect title is just as good as a perfect one, that the heirs are mere naked trustees, and can be compelled to convey at any time, for the inquiry necessarily arises, how is this fact to be settled if the heirs happen to think otherwise? By a decree of a court of chancery? But a title Which depends for its validity on a suit either at Taw or equity can, we think, scarcely be called unsuspicious and marketable; rather the contrary. Nor can we understand the force and effect of the sheriff’s deed to Amos Ellis, or the deed of confirmation to him of December 10th, 1869, from Edward Gr. James and wife. The one had, so far as we can see, no force, because the judgment on which the sheriff’s sale was had was not entered until after the date of his deed to Richardson’s heirs. The other is to no purpose, for the reason that when executed the grantor had nothing in the premises which he could convejn These do not help in the least to cure the main defect in the plaintiff’s title. The legal estate is still outstanding, and until that is extinguished he cannot put himself in a position to enforce payment from the defendant by the tender of “a good and marketable deed” The judgment is reversed and a new venire ordered.