Stevenson v. Kleppinger

The opinion of the Court was delivered by Gibson, C. J. That the vendor was not bound to make the conveyance till he had received the purchase-money, or security for it, is the point of view in which the cause was placed before the jury. The rule laid down in Edgar v. Boies, 11 Serg. & Rawle 450, is, that if a day be appointed for the payment of money, or any part of it, or for tbe doing of any other act or thing, and tbe day must or may happen before the thing which is the consideration of the money or other act is to be performed; an action may be brought for the money, or for not doing such other act, before performance of the act which was the consideration of that for which suit is brought. And such is the rule stated to be by sergeant Williams, 1 Saund. 320, note 4. The judge assumed that the vendee was not entitled to tbe conveyance till he had paid the money or secured it. There is no provision for security in the articles; and the matter turns on the mutuality or independence of the covenants. The vendee bound himself to make the conveyance in a convenient time, which is, in contemplation of law, a reasonable time; for the terms are convertible. That the literal import accords not with the actual intents appears from the unreasonableness of the consequence it might introduce; for the vendor might never find a time convenient. He. was [422] bound to convey as soon as a patent could be had in the usual course of the land office. On the other hand, the vendee was bound to pay at the times stipulated, without regard to the conveyance. Was, then, the conveyance to precede any part of the price? If it were, it would, according to the rule stated, be demandable without regard to the purchase-money. The vendee was to pay one-fourth down, and the residue in fifteen annual instalments;, so that the conveyance not only might, but must, have become demandable before not only the last instalment, but perhaps any of them became due; and, on the principle of the case quoted, the direction was wrong. It would evidently be a fallacious interpretation of the bargain to make him wait half a lifetime for the title, or perform more than was stipulated. The direction that the recovery to enforce payment of the purchase-money was an equitable bar, is also erroneous. To give that effect to a verdict in ejectment would make it conclusive, an operation denied to it by the statute and common law. But as the covenants are independent, the effect attributed to it could not be allowed to a verdict, even in covenant, because the defaults of the vendor— the matter in present controversy-^could not be touched by the inquiry, or enter into it as a subject for decision, let the form of the action be as it' might. Beside, they could, in any event, have entered into it but collaterally; and nothing is better settled than that a previous verdict on matters thus introduced is inconclusive. What, then, ought the plaintiff to recover? At common law, covenant is an action in disaffirmance of the contract, which seeks not to execute it, but to obtain compensation for the breach of it. With us, it is often used as an instrument of specific execution by means of a conditional verdict. The plaintiff, it would seem, went on the basis of a previous recision; though, according to Gloust v. Martin, 3 Serg. & Rawle 423, recovery of possession by the vendor is not an insuperable obstacle to specific execution. In this aspect, the measure of damages is the amount paid, with interest for the time when he was not in the perception of the profits. Judgment reversed, and a venire de novo awarded.