McGrew v. Foster

Mr. Justice Clark delivered the opinion of the Court, The facts in this case are not disputed; the title to the fifty acres of land, from which the timber in controversy was cut, was originally in E. J. Pettibone, who, 15th August, 1846,: conveyed the same with other lands to Ansel St. John. The plaintiff below claimed title under an unrecorded contract in writing, dated 10th April, 1854, between Ansel St. John (executed by his attorney, in fact, Lansing Wetmore) and Samuel Ward, by the terms of which St. John, in consideration of the sum of one hundred dollars, agreed to sell and convey to Ward the premises now in question. The purchase money was payable, twenty-five dollars in hand, and seventy-five dollars in two equal annual instalments with interest; the deed to be delivered, free from incumbrance, upon pajmient of the purchase money. The hand money was paid at the execution of the contract, but the residue of the purchase money still remains unpaid. After his purchase, Ward had a trial survey made to ascertain the lines approximately; a re-survey, however, by a regular surveyor was contemplated. He cut some timber, but never went into the actual possession by residence or cultivation. On 28th March, 1865, Samuel Ward assigned his interest to Archibald Ward, who, 8th April, 1867, assigned the same interest to A. J. Foster, the plaintiff below. The defendants claimed title through a series of recorded conveyances, embracing, with other tracts, the lands in dispute in part, as follows: Ansel St. John and wife to Thomas P. St. John, dated 7th May, 1855, recorded 6th June, 1855; Thomas P. St. John and wife to Samuel Lilljj, dated 23d August, 1859, recorded 28th September, 1859; Samuel Lilly and wife to A. H. Ludlow, William Martin and Adna Sawyer, dated 7th December, 1859, recorded 14th March, 1860. In the deed last recited, after the description of the several tracts embraced therein, is contained a clause as follows: “Also all contracts and articles of agreement for the purchase of said tracts, and all balances due and unpaid on any contracts and articles of agreement made by Lansing Wetmore for the sale of any portion of the above described tracts of land. It being the true intent and meaning of these-presents to convey to the said party of the second part all the right, title and interest of, in, and to the above described premises, which was conveyed ,to [647] Samuel Lilly by Thomas P. St. John, by deed dated August 24th, 1859.”' By various conveyances In due form and duly recorded, the title of Ludlow and Martin to the 400 acres of tract No. 228, described in the deed from Ansel St. John, became vested in the Great National Petroleum Company, and the title of Adna Sawyer in the same tract became vested in James McGvew. Each of these deeds recited a consideration, and acknowledged the receipt thereof.” The plaintiffs in error, who were the defendants below, contend, first, that Thomas P. St. John and Samuel Lilly, under whom they claim, were bona fide purchasers for value, and that they are therefore not affected by the unrecorded contract of 10th April, 1854; that the clause above quoted from the deed of Samuel Lilly to Ludlow, Martin and Sawyer, is not a reservation or exception of the fifty acres from the grant, contained in the deed, nor was it notice to subsequent purchasers, of the contract with Ward upon which the plaintiff relies; and, second, that, in any event, before the plaintiffs could bring and maintain this action, be must liave paid or tendered the purchase money; that, standing upon the terms of his contract, lie would be mot at tlio threshold with his own default. It is not necessary for us to consider the first ground of this contention, as the second, in our opinion, is certainly decisive of the ease. In Minster v. Morrison, 2 Yeates, 346, the general rule was declared, that a purchaser of lands, who seeks redress under liis articles, must bring his money into court in order to show his readiness to perform his contract. This case was recognized and followed in Gore v. Kinney, 10 Watts, 139, an ejectment brought by an equitable vendee against the vendor; it was there held that the plaintiff must not only tender the money due and unpaid, before suit brought, but he must have it in court, ready to be paid to the defendant, in case of a verdict for the plaintiff: Youst v. Martin, 3 S. & R., 432; Peebles v. Reading, 8 S. & R., 496, and Moody v. Vandyke, 4 Binney 41, are cited as authority for the doctrine thus stated. So in D’Arras v. Keyser, 2 Casey, 252, Mr. Justice Woodward, referring with approval to Gore v. Kinney, supra, says: “There can bo no question about the soundness of the principle that, in an equitable action of ejectment, the plaintiff, to be entitled to recover, must not only tender the money before suit brought, but must also have it in court ready to be paid in the event of a verdict in his favor.” This rule, as stated, is restricted in its application, however, to cases where the [648] defendant’s possession is a lawful one, for, in the case last cited, it was held, that if the vendee is once fairly in possession of the land under articles of purchase, and is ousted by fraud, force or other illegal means, he is entitled to recover in ejectment, without bringing the money into court. So in Eberly v. Lehman. 4 Out., 542, it was said, that the rule did not apply when the vendor, before payment, has put the vendee into possession under the contract, and induced him to make valuable improvements, and afterward by collusion or other unfair practice, regained the possession ; (citing Harris v. Bell, 10 S. & R., 89; Dixon v. Oliver, 5 Watts, 509; Gregg v. Patterson, 9 Id., 208; Wykoff v. Wykoff, 3 W. & 5., 481; D’Arras v. Keyser, 2 Casey, 249.) To the same effect are Heft v. McGill, 3 Pa. St., 256 ; Brewer v. Fleming, 1 P. F. 5., 102; Chase v. Irwin, 6 Norris, 290. Similar in some respects, to the case under consideration, is the very recent case of Bell v. Clark, 1 Amerman, 92. Bell, by articles dated July 1st, 1870, agreed with Adaline Clark, on payment of $732.48 within two years, to convey certain lands to her, of which in the meantime she was to have possession. This possession she took and maintained until within four years before suit brought, but paid no purchase money. Bell, finding the premises vacated, entered into the possession, wherefore Mrs. Clark brought ejectment. Mr. Justice Gordon, delivering the opinion of the Court, says: “Under these circumstances, it cannot be said that in thus resuming dominion over the property, the vendor was guilty of either a fraudulent or unlawful act.” “ The rule may be stated thus: where the possession of the vendor is lawful, his vendee cannot maintain ejectment against him, without proof of previous tender of the purchase money, and he must also maintain that tender, by producing the money in court.” In the case at bar, there is no express covenant on part of the vendor to deliver the possession to the vendee. “As a general rule,” says Agnew, J., in Weakland v. Hoffman, 14 Wr., 517, a contract to sell does not, ipso facto', carry a right of possession until conveyance, in the absence of a covenant, to let the party into possession. It is very common, it is true, to let the purchaser in upon a sale, but we know of no rule of law by which the possession, so important a security to the rights of the vendor, shall pass from him without his covenant or his consent.” See also Smith v. Patton, 1 S. & R., 84; Baum v. Dubois, 7 Wright, 260; Irwin v. Bleakly, 17 P. F. S., 28. Nor is there any evidence that actual possession was at any time taken, under or in pursuance of the contract. It appears that after his purchase Ward made a trial survey, to ascertain the probable boundaries of his purchase, and cut some timber; [649] whether those acts were known or approved by St. John does not appear. It is clear, however, that Ward never assumed the actual possession of the land. A mere temporary occupancy for the purpose of making a surve or taking off timber, by one having no right of possession, Is not such an actual occupancy as defeats the constructive possession, which the law casts upon the owner: Harlan v. Harlan, 8 Harris, 607; Brower v. Fleming, 1 P. F. S., 115. The defendant was the legal owner of the land, and as he had not conveyed or yielded the possession to any other person, he was at all times constructively in the possession, under his title; he had a right at any time to enter and occupy the laud, subject of course to the equity of the vendee, to lyhom for any injury to the freehold, he might under some circumstances be answerable ; not as a trespasser, but in another form of proceeding: Edelman v. Yeakel, 8 Casey, 26. To maintain trespass, the plaintiff must either have actual possession or the immediate right to it, flowing from the right of property, and it is plain that he had neither. It is not pretended that he was at any time in the actual occupancy of the land, and he could only be entitled to that right, upon the footing of a specific performance of his contract. The contract of purchase was made in the year 1854, at which time only twenty-five dollars of the purchase money was paid; no part of the residue has ever been paid, or offered to be paid ^ almost thirty years had elapsed before tbe alleged trespass was committed; during all that time the laud remained unoccupied and unimproved, and since 1867 until the bringing of this suit, no act appears to have been done or words spoken in assertion of the plaintiffs right. Prior to that time the lands were, to some extent, stripped of the timber, yet the unpaid purchase money, by the interest since accrued, has tripled in amount. Under such circumstances, the vendor might well suppose the contract to have been abandoned, and a chancellor would certainly hesitate to decree a specific performance. A vendee, by articles, cannot experiment with his purchase ; he will not he allowed to pursue a course of conduct calculated to mislead the vendor into the belief that the contract is abandoned, and when the development of the resources of the country makes it bis interest to demand performance. Lapse of time, change of circumstances, and indifference on the part of a vendee of land, are circumstances to induce a chancellor to refuse a decree of specific performance: Patterson v. Martz, 8 Watts, 874. “If a party seeking a specific execution has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part; or if, in the intermediate period, there has arisen a material change of circum [650] stances affecting the rights, interests and. obligations of the parties, a court of equity will refuse to decree a specific performance.” This rule 'is held with more strictness against a party out of possession: Russell v. Baughman, 13 Norris, 400. Specific performance is within the sound discretion of the chancellor; there must be no default in the plaintiff, which would render performance inequitable. The plaintiff’s claim under his contract has been too long neglected; it has by this neglect lost its vitality, and become stale; it cannot now, after this great lapse of time, be resurrected, to harass the title of the legal holder. We are of opinion that the plaintiff has no case, and the judgment is therefore reversed.