Gore v. Kinney

The opinion of the Court was delivered by Sergeant, J. This case depended chiefly on questions of fact, which seem to have been submitted by the court to the jury, and in relation to which we are not called on to express an opinion. The only point of law concerning which a doubt has been entertained, is as to that pai;t of the charge in which the court instruct the jury that the plaintiff would not be entitled to recover, unless, in addition to the tender made before suit brought, he now brings the money into court ready to be paid over to the defendant if the verdict of the jury should be for the plaintiff; and that not having done or offered to do this, he could not recover, and the verdict must be for the defendant; It is contended by the plaintiff, that having tendered the money before suit brought, it was unnecessary to do so again on the trial, but that every purpose might be effected by a conditional verdict. Upon looking into the authorities, however, the principle stated by the court has been too well established to be called in question. The distinction has been settled between the case of an ejectment brought on a legal title, and on an equitable title. In the case of a legal title, the rule is, that the plaintiff has a right to commence his action before tendering tire money due to the defendant on his equitable claims. But in the case of an action of ejectment, founded on an equitable title, the plaintiff must not only tender the money before suit brought, but he must also have it in court ready to be paid to the defendant in case of a verdict for the plaintiff. Youst v. Martin, 3 Serg. & Rawle 432; Peebles v. Reading, 8 Serg. & Rawle 496; Moody v. Vandyke, 4 Binn. 41. In Minsker v. Robenson, 2 Yeates 346, the court say, the general rule must be, that the purchaser who seeks for redress under articles, must bring his money into court, in order to show his readiness to perform his contract. The adversary may, however, if he pleases, modify or relax the rule. And the case was adjourned till afternoon, and then till morning, to give the plaintiff an opportunity of bringing in the money. But not being done, he suffered a nonsuit. The instruction of the court below therefore was correct. Judgment affirmed.