Bumberger v. Clippinger

[314] The opinion of the Court was delivered by Rogers, J. It is an invariable rule in a Court of Chancery, that a purchaser shall not be compelled to accept a doubtful title, nor will the court compel him to take an estate which it cannot warrant to him. Heath v. Heath, (1 Bro. C. 147); Marlow v. Smith, (2 P. Will. 198); Sugd. Vend, and the cases there cited. This cause comes before us on a case stated, and has been considered by both parties as in the nature of a bill for the specific performance of a contract, and is of course within the range of the principle above stated; so that the question really is not so much whether the vendor’s title is good, as whether it is so clearly so as to justify the court in directing the vendee to take the estate, and pay his money for it. And this leads to the inquiry, what is the title of the vendor. It depends on the validity of the Act of the 24th of January 1839, which enacts in the 5th section, “ that Jacob Clippinger, and Isabella his wife, daughter of Alexander Stewart, be authorized and empowered to sell certain real estate devised by the said Alexander Stewart to his daughter Isabella and her children, and to execute a deed to the purchaser, vesting in him the fee-simple of the estate; with a proviso, that the sale shall not be valid or effectual to vest the fee-simple thereof, unless the said Jacob Clippinger, previous to the execution of the deed, enter into a recognizance in the Orphans’ Court of the county of Cumberland, in such sum as the court shall deem proper, conditioned for the faithful investment of the proceeds, for the benefit and use of the children after the death of Isabella Clippinger. By the will of Doctor Stewart, he devises to his daughter a life estate, with a remainder in fee to her children; and this is such an estate as' cannot be devested by fine and common recovery. To defeat the will of the testator this Act has been passed; and the effect of it is, by a legislative provision, to substitute one property for another, without the assent of the remainder-men in fee, and without notice to them, who are infants, or any person to protect their rights, except it be their parents, who have an interest, as they suppose, of their own to serve, adverse to theirs. We do not say that this is beyond the limits of legislative power marked out in the constitution, but we must remark that few, if any instances, can be produced, where the Parliament, with all their transcendent power, have in the same manner interfered, and altered a settlement made for the benefit of infants. The Legislature directs, that previous to the execution and delivery of the deed, Jacob Clippinger shall enter into a recognizance in the Orphans’ Court, conditioned for the faithful investment of the proceeds of sale in other lands; and this direction he has literally complied with by giving his own recognizance. Now, this recognizance is either a lien on the land sold, or it binds Jacob Clippinger alone, without any other security. If the former be the construction, would it be right to compel the purchaser to pay the purchase money, and [315] at the same time have his land encumbered to the full amount of its value ? If the latter, what security is there on which we can safely rely that the condition of the recognizance will be complied with ? Let us suppose, and this is within the course of possibility at least, that he neglects or refuses to reinvest the purchase money in other lands; or let us imagine, what may really happen, that the children, at some distant period after the death of their mother, may become dissatisfied with the exchange, who can assure the title to the purchaser? We cannot warrant the estate to him, for no decision that can be now made will conclude the vested rights of the children. When the time arrives which vests their rights in possession, the then Supreme Court will be at liberty to disregard our opinion as authoritative and binding upon them. The remainder-men are not before us, except indirectly, nor were they represented before the Legislature. They are therefore not concluded; for although their' rights are not expressly saved, the Act binds none but the parties, as has been repeatedly ruled. Judgment reversed, and judgment for defendant.