Smith v. Sillyman

The opinion of the Court was delivered by Rogers, J. This is an action on a bond, for the use of Richard S. Field, against Samuel Sillyman, John Sillyman and William F. Dean. The sheriff returns, “summoned,” as to Samuel Sillyman — 11 nil habent,” as to John Sillyman and William F. Dean. This raises the question on the exception to the admission of William F. Dean, one of the obligors, as a witness. Without the deposit of the money with the prothonotary, upon the stipulation, to be returned, in case of judgment being rendered for the defendant, the witness would clearly be incompetent. By the act of the 6th April, 1830, whatever doubts may have existed before, judgment against the defendant Avould be no bar to a in another suit the though *not served with process. The witness was therefore directly interested in procuring a judgment for the defendant; for this would be a bar to a recovery against him, in a subsequent suit. And this would seem to have been the opinion of the Court; for the witness was rejected, in the first instance, and was afterwards admitted, solely, on the ground of the deposit of the amount claimed in Court. But, how does the deposit remove the objection taken on the score of interest? It is an additional security for the money, it is true, but still it does not amount to payment. It diminishes the risk, but the liability remains; and the amount of interest is nothing, so far as the question of competency is involved. The deposit does not extinguish the debt, and the witness was as obnoxious to suit as before. In this respect it differs from Bailey v. Hale, (14 Eng. Com. Law Rep. 449). At this trial it was discovered, that a witness for the defence was one of the bail, and therefore incompetent: the judge, on the defendants depositing a sufficient sum in Court, made an order for striking the witness’s name out of the bail-piece, so as to render him a competent witness. All power in relation to special bail is under the entire control of the contract, and the effect of the order was in this case to substitute one security for another, and in most .cases, affording a better indemnity to the plaintiff. It must be observed, that the bail, in Bailey v. Hale, were discharged from all liability. The name of ■ the bail being stricken out of the bail-piece, removes all objection to his competency. But here, Dean, the co-obligor, is bound for the money, as one of the principals, and I am yet to [599] learn what right the Court has to discharge him from responsibility on the bond, without the consent of the obligees. We are of opinion, that the Court erred in admitting Dean as a witness.* The next question arises on the construction of the contract of the 23d of April, 1830, whether the parties agreed to sell and purchase a mere right, and the purchaser to run the risk of the title. The Court decided, that it did not appear on the face of the contract that the risk of the title was to be run by the purchaser. Of this the plaintiff complains. In a contract for the sale' of lands, a failure of consideration in an action for the recovery of the purchase-money is a good defence, in whole or in part, whether there be a general or special warranty. Steinhauer v. Witman, Adm. of Myers, (1 Serg. & Rawle, 438); Hart v. Porter’s Exr. (5 Serg. & Rawle, 201). These decisions, as is clearly shown in Lighty v. Shorb, (3 Penn. Rep. 450,) are not founded on authority, but are supported only by long. and uninterrupted usage. They are, however, too well settled to be open to argument; but whilst we recognise the principle, yet we have never felt inclined to extend them to cases to which they do not legitimately belong. Thus in Friedly v. Sheetz, (9 Serg. & Rawle, 156,) it was ruled, that a sheriff’s sale cannot be objected to by the purchaser, on 'the ground of defect of title. Lighty v. Shorb, is in further restraint of the operation of this principle. Justice *Duncan, observes, that “ the case of Steinhauer v. Witman, is not Avell understood. It does not go to the whole length, as some have supposed, that a man who purchases a title, with all its defects and imperfections, and whose conveyance contains no covenant of warranty, is not bound to pay the bonds he has given for it.” Mr. Justice Yeates, the great advocate for the departure from the general rule, both of law and equity, of caveat emptor, on the sale of lands, yet restrains its operation. He puts it On the principle, what was the true meaning of the contracting parties ? was it contemplated mutually, that the purchaser should hold the lands under a good title, or that he should run his chance of getting a title, and be exposed to all hazards ? What then -was the nature of this contract ? — for the' intention of the parties must govern its construction. John K. Smith, who, together with others, had purchased from Moser one hundred acres of coal land, (the contract for the sale being in fieri,) agrees to sell the contract so made, to the defendant, or in other words, for a consideration therein stipulated, agrees that the defendant shall take their place as the purchasers from Moser. From the very nature of the agreement, in the absence of any express stipulation to the contrary, it [600] would seem, that the vendor did not intend to warrant the title to the premises, but that the vendees took the risk, relying on their own judgment as to the soundness of the title, and for indemnity on the original vendor. That this was the understanding, is further shown from the agreement, and the conduct of the parties. It is expressly agreed, (and the security of the vendees is said to be the-object,) that the first payment shall not be made until the vendees are fully satisfied, as to the title to the land. This shows, that for this purpose they depended on their own judgment. When the title is fully established to their satisfaction, (for so I read the contract,) the vendees bind themselves to take the deed. By the agreement a reasonable time is allowed them to investigate the title for themselves. Until then, a defect of title would undoubtedly be a good defence: but after, having examined it for themselves, and accepted the title, they are foreclosed from taking any defence, on the ground of a failure of consideration, so far as the present plaintiff is concerned. This construction is necessary for the protection of the plaintiffs, as they would have no remedy on the warranty. The deed was made to Samuel Sillyman, with general' warranty: he, therefore, would alone have remedy on the covenant against Moser. If, therefore, Smith or Field had paid part of the purchase-money to Moser, they would be without remedy, unless a recovery can be had on this contract. The remaining exceptions have not been sustained. Judgment reversed, and a venire de novo awarded. Cited by Counsel, 9 Watts, 308 ; 8 Watts & Sergeant, 35: 3 Barr, 155, 361; 6 Id. 84; 9 Id. 112; 10 Id. 74; 1 Harris, 342; 4 Casey, 290. Cited by the Court, 6 Barr, 324; 9 Id. 497. Footnotes [*] See 1 Wharton, 398.