Wykoff v. Wykoff

The opinion of the Court was delivered by Kennedy, J. That the father of the plaintiff in error made a parol agreement with the father of the defendants in error, for the sale of the land in question, and that such agreement was executed in part, so as to take the case out of the Act of Assembly against frauds and perjuries, are propositions which must be taken as true and undeniable, seeing the jury, by their verdict, have found them to be so, under a charge from the court that has not been excepted to, in this respect at least, by the plaintiff in error. The questions growing out of the first and third errors assigned, are the same, and two in number, and will therefore be considered together. The first is: If a vendor of land or real estate, after having put the vendee in possession of it, agreeably to the terms of the sale, and having received part of the purchase money, takes possession of it again, and uses it without the consent of the vendee or his [485] heirs, is he or his assignee, to whom he has sold the land a second time, not chargeable with the rents, issues and profits thereof, in an action of ejectment, brought against either, for the recovery of the possession of the land, by the first vendee or his heirs, as long as they hold and use the same, to be applied towards satisfying any balance that may remain unpaid of the purchase money, so far as the profits may be requisite for .that purpose, when sufficient to answer it 1 - And secondly: Is it requisite in such case, where the possession is obtained by the vendor by means of collusion with the tenant of the first vendee or his heirs, to make a tender of the residue of the purchase money, before the institution of the ejectment by the latter, to entitle them to recover the possession ? This latter ques-. tion seems to be settled by the decision of this court in Harris v. Bell, (10 Serg. & Rawle 39), in the negative; and so the court below instructed the jury. Then, as to the first question, it seems difficult, upon equitable principles, at least, to raise even a plausible objection to the vendor or his assignee being charged with the mesne profits, in order to extinguish, when they are sufficient for that purpose, all further claim to holding the possession of the land. The vendor, in such case, when he retook the possession of 'the land, had no right whatever, in an equitable point of view, to do so, further than to secure himself in the receipt of the residue of the purchase money; and having received it by an appropriation of the rents, issues and profits of the land to his own use, it would be highly inequitable and unjust that he should be permitted to withhold the possession thereof, after that, from his vendee or his heirs. The vendor is deemed in equity a trustee for the vendee of the estate. 2 Story’s Eq. 458, 459, pi. 1212. And if he takes possession of it, it is too well settled to admit of doubt, that he is bound to account for the profits received from the same. Indeed, it would be most flagrantly unjust if it were not so- The evidence, therefore, proving the annual value of the land, or the amount of the rents, issues and profits thereof, was properly admitted, in order to show, that by the receipt of the same, the plaintiff in error and his father had been satisfied for any residue of the purchase money remaining unpaid and due from the defendants in error, upon the purchase of their father, at the time the plaintiff in error’s father retook, the possession of the land. And as the jury found a verdict in favour of the defendants in error, it must be taken that the whole of the purchase money was by .these and other means paid and satisfied, and hence nothing remained to make a tender'of; or else they must have found that the grandfather re-obtained the possession by improper means ; and if so, no tender was necessary before instituting this action. In either aspect, the plaintiff in error has therefore no reason to complain. [486] In regard to the second error, we think the evidence offered by the plaintiff in error to prove the value of his improvements, was rightly rejected by the court. They were not such as were necessary to the occupation and profitable enjoyment of the land: and hence to allow for such improvements, made by a person standing in the character of a trustee, as the plaintiff in error and his father did, might be in effect to permit the cestui que trust to be improved out of all claim to the land. Judgment affirmed.