Markley v. Swartzlander

[176] The opinion of the Court was delivered by Sergeant, J. It is plain, from the evidence in this case, that the real ground of dispute between the parties was whether the plaintiff was bound to give a warranty against the claim of Joseph' Swartzlander, under the reservation in his deed to the plaintiff; and that all the other matters, as to the tender of a deed, on the one side, and of the money on the other, would have been disposed of, could this have been concurred in. But the defendant insisted then, and on the trial, that he was to have a clear title for the premises, freed from all incumbrances, as well this as any other. The plaintiff alleged that the defendant was perfectly aware of this reservation in the deed before signing the agreement, and entered into the agreement with a full understanding of the nature and extent of the claim. The parol evidence of what passed at the execution of the agreement, as well as other circumstances, settled this question in the minds of the jury in favour of the plaintiff, and the objections to this evidence have been waived here. The point chiefly dwelt upon by the plaintiff in error is, that the plaintiff was bound to tender a deed before bringing his action, and that he had failed to do so; that the deed tendered and filed in court, and annexed to the record, was one in which the plaintiff had made an erasure, which was not noted before the delivery, and was objected to at the meeting, and the defendant had therefore a right to refuse it. If the plaintiff was bound to file a deed before suit brought, there would, perhaps, be weight in this objection ; for though an erasure does not necessarily avoid the deed, if it be afterwards regularly delivered, yet it affords ground of suspicion to a subsequent purchaser, renders the title less marketable, and exposes him to the expense and trouble of obtaining proof of the facts, and even to the risk of loss of that proof, and therefore is not such a deed as the plaintiff ought to furnish the defendant. But this is not a case in which the plaintiff is bound to show a tender before suit brought. It is an action of ejectment, brought to enforce the payment of the purchase money, and the plaintiff has the legal title. This was so held in Devling v. Williamson, (9 Watts 311), where it is decided that in an action of ejectment founded on a legal title, where the defendant rests his defence on an agreement of purchase, it is not essential to the plaintiff’s right to recover a conditional verdict, that he should have tendered to the defendant before suit brought. It is sufficient that the plaintiff tenders or files the deed in court on the trial, where he is entitled to recover a conditional verdict on the defendant’s default in complying with his contract. The defendant is considered as coming into a Court of Chancery on his equitable title, and there the condition of the parties at the time of the decree is regarded, rather than at the commencement of the suit; and the verdict is in the nature of a special decree. The deed here was tendered on the trial, and filed in court. The only ob [177] jection to it was the erasure, and the plaintiff ought to have obviated that by drafting and executing another free from objection. As it is still in the power of the plaintiff to do this without injury to the defendant, we think it our duty to give him the opportunity, rather than put the parties to the expense and trouble of another trial. The other error relied on is that contained in the bill of exceptions, and we think the court below was right in admitting the cross-examination. If it was in one sense new matter, yet, in another point of view, it was but developing a part of the res gestee at the execution of the instrument, and this the plaintiff had a right to inquire into by cross-examination. One of the grounds on which a party producing an instrument attested by a witness is bound to produce the witness, if it is in his power, is that the opposite party may have an opportunity to examine him as to the circumstances that occurred at the attestation and delivery. And these circumstances may relate to various matters besides the mere mode of execution of the instrument, that go to invalidate or modify the effect of the instrument. Under our decisions, parol evidence of what passed at the time of executing an instrument is admissible in- evidence to vary or control it, and is considered as part of the contract. The case of Perit v. Cohen, (4 Whart. 81), is quite as strong as the present, if not more so. There it was decided that, in an action on an award under a parol submission, one of the arbitrators, after being called by the plaintiff and proving the submission and award, might be cross-examined by the defendant to show that he and the other arbitrators had previously decided they could make no award, and informed the parties of that decision. Judgment affirmed, provided the plaintiff, before the 1st April, 1845, files in the court below a good and sufficient deed like that on record, but free from erasure, to be at the disposal of the defendant on complying with the verdict; otherwise to be reversed, and venire facias de novo awarded.