Beeson v. Porter

Opinion by Mr. Justice Thompson, This was an action of ejectment by appellee for the specific performance of an agreement of appellant to purchase from him a tract of land consisting of 1210 acres. On January 27, 1891, the appellee and the appellant entered into this agreement by which the former agreed to sell and the latter to purchase all the undivided interest of appellee in land described as Mount Braddock, land lying east of land bought by T. R. Wakefield at assignee’s sale, the eastern boundary of the same being located parallel with and thirty feet west of the Baltimore and Ohio Railroad. The consideration was $10,400 payable upon the delivery of the deed by appellee. The appellant paid $400 and refused to pay the balance because a sufficient deed was not tendered him. Upon the trial appellee offered in evidence a deed for all of his undivided one third of eight tracts of land being the same devised by his father to him and to his brothers, lying east of land conveyed by John K. Beeson and wife to Samuel E. Ewing, being the interest in the same land as that conveyed to Thomas R. Wakefield and having the same description. The learned judge after instructing the jury as to the effect of this agreement, submitted to the jury to determine from an inspection of the deed and the agreement whether or not the plaintiff had complied with the terms of the agreement by tendering the deed in question. The learned judge said in this connection: “ As we have, now, gentlemen of the jury, tried to construe this agreement to you so that you may properly understand it, we leave it to you to determine from an inspection of the deed and the agreement, as we have interpreted it, whether or not the plaintiff has complied with the terms of the agreement by tendering to the defendant such deed as he is required to deliver under this agreement.” As contended under the additional assignment of error filed, it was error to leave it to the jury, to determine whether the appellee had tendered a sufficient deed. It \\ as a question, not for the jury, but for the eourt. If the deed tendered was sufficient the learned judge should have so instructed them. In Reno v. Moss, 120 Pa. 67, it was said by Mr. Justice Williams : “ From this review of the cases it is quite clear that in an equitable ejectment the judge sits as a chancellor; that it is his duty to ‘ view and weigh facts for himself ’ and to with 582 draw the evidence from the jury when it is not such as ought in equity and good conscience to induce a decree of specific execution. Whether the doubt arises from the insufficiency of the facts alleged if found by the jury, or the insufficiency of the evidence to justify a finding in favor of the alleged contract, it is of no consequence. It is the existence of the doubt, however arising, that stays the hand of the chancellor. Unless upon the whole evidence the conscience is moved the decree should be withheld.” Again, in the case of Hess v. Calender, 120 Pa. 152, he says: “ What then is the province of the jury in such a case, and what is the meaning of the expression quoted by the plaintiff in error from the opinion of Moore v. Small ? We reply that it simply is that of an advisory council in aid of the conscience of the chancellor; Moore v. Small, supra; Brightly Eq. sec. 758-759; Piersol v. Neill, 63 Pa. 420. If he is satisfied upon all the evidence that the case is a proper one for specific execution, he should say so to the jury and direct their verdict.” The learned trial judge instead of determining whether the deed tendered was such as the appellee was required to tender, submitted that question to the jury and thus required them to perform a duty which was peculiarly his own. While there was error in thus submitting to them this question, yet, as the deed tendered is a sufficient compliance with the agreement, and as in a new trial it would be the duty of the trial judge so to hold, it is in view of this fact unnecessary to incur the delay as well as expense of a new trial by sending it back for that purpose and therefore this judgment is affirmed.