Ullom v. Hughes

Opinion bv Mb. Justice Mitchell, The plaintiff being the owner of land, gave an option to the assignor of the present defendant, to purchase the coal and part of the surface, upon notice of acceptance before a certain date, payment, etc., the plaintiff covenanting on his part to furnish a survey, abstract of title, and general warranty deed, clear of incumbrances. As to these facts there is no dispute between the parties, but each charges the other with subsequent default in the performance of his covenants. The learned judge below held that there was no denial of , plaintiff’s title but that defendant’s claim was in affirmance of it and an assertion of a mere equity in subordination and dependent upon it, under the contract. He held, therefore, that the case was not within the statute. This view was erroneous in taking too narrow a definition of a denial of title. The defendant here, it is true, does not deny the plaintiff’s former title or assert in himself a title par [309] amount, but he does deny the plaintiff’s present title and right of possession by a claim that it has passed out of plaintiff to himself under the agreement. This is exactly the kind of denial of title that is involved in an equitable ejectment on the contract of sale, denial of present title by affirming prior title but averring that it has passed to the vendee. It is conceded on all hands that such an ejectment would lie here and the statute expressly gives the verdict in an issue under the present rule the same force and effect as in an ejectment on an equitable title. The Act of June 10, 1893, P. L. 415, is entitled, “An act to provide for the quieting of titles to land,” and provides that any person in possession of land and claiming to hold or own possession by any right or title whatsoever, whose “ right or title or right of possession shall be disputed or denied ” may apply by bill or petition and obtain a rule, etc. The intent of the act is to give an owner in possession an additional, speedy and convenient remedy for immediate trial and adjudication of any claim of adverse title to part or the whole of his land. It tends to equalize and assimilate the position of claimants of title whether in or out of possession. As was pointed out in Del. & Hudson Canal Co. v. Genet, 169 Pa. 343, it is another step in the same direction as the enlargement of equitable remedies, the Acts of May 21,1881, P. L. 24, March 8,1889, P. L. 10 and May 25, 1893, P. L. 131, etc., which have relieved the owner in possession from the common law necessity of inactive waiting for an attack on his title, and have enabled him to force an immediate contest and settlement. That case logically determines this. The consequences deprecated by the court below do not follow. The act of March 21,1806, has no bearing on the case, for the act of 1893 does not give a new right enforceable only in the prescribed way, but merely a new remedy for a right always existing, to defend title and possession. And the new remedy is plainly intended to be cumulative only. All the old remedies remain unaffected. Either party may go into equity, the vendor for rescission or cancelation of the contract, and the vendee for specific performance. And the vendee still has the further choice of an ejectment or an action for damages for breach of the contract. In either of these ways he can have his case [310] tried by a jury, but formerly the vendor had no such remedy. On a mere option-which he did not admit had been accepted, as in the present case, he could not sue at law and could only get rid of the cloud on his title by going into equity. Under this act he may have the facts of acceptance or default determined by a jury. The act expressly assimilates the proceeding to an equitable ejectment, and there is no valid reason why the remedy should not have a liberal construction in furtherance of the expressed purpose. If the plaintiff is in possession under claim of title and the defendant makes an adverse claim, whether by title paramount or title dependent by contract on his own, the dispute or denial within the contemplation of the act exists and a case for an issue is made out. The control of the court over both the form and the substance of the issue is ample, and should be exercised to fit the requirements of the real controversy between the parties. The defendant on coming in to answer the rule may disclaim, as provided in the act, or he may deny default on his part and ask for a conditional verdict, as if in ejectment, or he may set up a default by the plaintiff and elect to,,recover damages under a plea of set-off, as in an action for breach of contract. The court should mould the issue according to the circumstances so as to reach a trial on the merits. Judgment reversed and an issue directed to be awarded.