Lessee of Stouffer v. Coleman

M’Kean C. J. I sit single in this cause; my brother Yeates, who was formerly of counsel with the plaintiff, declining to intermeddle therein. Reasonable proposals have been made on the part of the plaintiff, which have not been acceded to. It rests therefore to see what the law is, and how far the court can interpose, to oblige all parties to do what is just and reasonable. The legal and equitable construction of the articles must determine whether Stouffer shall be considered as a general creditor of Slough, or whether he has a lien on the premises. The question shortly is, whether he actually sold and conveyed, or only agreed to sell and convey on certain terms. The instrument has very strong expressions in it, in the present tense, “do grant, bargain and sell.” But the true intention must govern, if it can certainly be discovered. For the reasons offered by the plaintiff’s counsel, I am satisfied, that the honest- and true meaning of the parties was, that the writing was intended merely as an agreement to convey: judging of all the parts together, it cannot reasonably be construed otherwise. The difficulty which then occurs, is Stouffer’s taking bonds for the purchase money. None of the cases cited come fully up to this point, except that in i Bro. Cha. Rep. 430, which was not finally decided on this question. The causes adjudged in this court do not go so far, but those cited from the books in England, fully prove the general doctrine, that as between the vendor and vendee of lands, and those claiming under the latter with notice, the lien continues. If Slough had sold over to a stranger without notice, a material difference would probably have arisen. Yet though bonds were taken, there is no proof either in writing or by parol, that they were accepted as actual payment, nor is there any receipt indorsed for the consideration * money. It is very important, r*onq and weighs much with me, that the plaintiff kept pos- *- session of his title papers, which is strong evidence that he considered the land as his security until the purchase money was paid. Why else sise should he retain those muniments? This circumstance essentially distinguishes the cause before us, from Fowel v. Heelis, in 1 Bro. Cha. Rep. 421, where a contrary decree took place. [Vide Ambl. 734, where this case is more fully reported. Fonbla. Treat. Equ. 373.] Had Slough’s assignees brought their ejectment to recover the possession, I should be clearly of opinion, that without payment of the full consideration money and interest, they ought not to succeed. They stand in his place precisely. But here Stouffer comes into this court as plaintiff, to ask equity, which is part of our law: to obtain it he must do [399] equity himself. Valuable improvements are suggested to have been made by Slough, and it is also said he has committed great waste on thé woodland. A verdict should pass for the plaintiff. Stouffer ought to pay the assignees for the solid and permanent improvements which have been made on the land, deducting the rents and profits received, and the injuries and waste done to the premises. We both recommend that persons should be appointed to make this estimate, and we think complete justice and equity will be done in this mode. In 7 S. & R., 74, G-ibson, J., doubted whether Stouffer v. Coleman was accurately reported. Cited iu ii S. & R., 332, in support of the proposition that the legal operation of a writing, plainly intended as an executory agreement, in which words of present conveyance are inconsistently introduced, shall be construed as executory. Cited in 3 Rawle, 436, in support of the general proposition that if the intention is clear that an estate shall pass, courts will construe deeds in support of that intention, different from the formal nature of the deeds. Cited for the same purpose in 4 Wh., 239 ; 7 Watts, 150; 27 Pa., 301; 37 Pa., 203. Questioned as to the doctrine of equitable liens, in 48 Pa., 100. Cited in 11 Pa., 94. Verdict pro quer. Messrs. Kittera and C. Smith, pro quer. Messrs. Montgomery, M’Kean and Hall, pro def. The defendant’s counsel perceiving the opinion of the court, acquiesced in the propositions, and three of the jurors were accordingly appointed by the chief justice.