Whittemore v. Darden

Mr. Justice Moréis delivered the opinion of the Court: We deem it unnecessary to rest our decision on the question of the sufficiency or insufficiency of the acknowledgments which have constituted the main point of argument in this case. So far as the title is concerned, that question is now set at rest by the record of the two quit claim deeds; and the doubt, if ever there was good ground for doubt, has. been finally and completely removed. No decision from us is now required to sustain the integrity of the title. But whether that title was good or bad, the appellee was induced by the opinion of the examiner employed by him to regard it as defective and bad; and that conclusion of the examiner he communicated to the appellant and his. agent. The appellant and his agent, fortified by the opinion of another examiner, strenuously maintained that the appellee’s examiner was mistaken; yet, at the same time, in deference to the opinion of the latter, they undertook to cure the alleged defects in the manner pointed out by him, by procuring quit claim deeds. By their conduct in this regard they virtually acquiesced in the position taken by the [453] appellee, relieved the latter from any obligation to consummate the agreement within the twenty days specified in the memorandum of the contract, and made the consummation of the contract practically dependent on the procurement of the quit claim deeds. They might have stood by the integrity of their title as it was at the time; but deeming it expedient to endeavor to procure the quit claims deeds in deference to the opinion of the appellee’s examiner, it became thereupon their duty to give due effect to this modification of their agreement. In pursuance of this understanding between the parties, when the first of the two quit claims was procured, it was promptly delivered by the appellant or his agent to the appellee’s examiner, and was by him noted on his abstract or certificate of title. But when a delay ensued of over two months and a half thereafter in the procurement of the other deed, the appellee, to whom it does not appear that explanation was given of the cause of the delay, might well have concluded that no such deed would or could be procured. When the deed arrived at last, it does not appear from the record that there was any communication of it either to the appellee or his examiner; and from the testimony on behalf of the appellant, as given in the record before us, although this deed must have been in the possession of the appellant or his agent several days before the institution of this suit, yet the appellee’s examiner, who evidently would have regarded this deed as removing all substantial objection to the title and who had so certified in advance, was, for some unexplained reason, kept in total ignorance of its existence. The deed was not delivered for record for more than a month after its receipt by the appellant, or for upwards of a month after the institution of this suit. Under the circumstances of this case, it became the duty of the appellant or of his agent, upon the receipt of this deed, promptly to communicate the fact to the appellee or his examiner, and thereby to fix definitely the liability of the appellee under [454] his contract. Instead of doing so, the appellant kept the deed in his own possession, or under his own control, and proceeded, without any notice to the appellee, to sell the property to another person. The precise date of this sale does not appear from the record before us. There is nothing to indicate that, if this second quit claim deed had been tendered to the appellee, or the fact of its execution communicated to him or to his examiner of titles, even after this suit had been instituted, the appellee would not forthwith have complied with the terms of his contract and consummated the purchase of the property. In fact, the appellee testified at the trial that he would have been willing to take the property at any time upon the removal of the defects indicated by his examiner. The failure of the appellant to give notice of this deed, coupled with his subsequent sale of the property to another person, similarly without notice to the appellee, must be regarded as an acquiescence by him in the position taken by the appellee, and can only be justified upon the theory of such acquiescence. It is very true that when a party, who has contracted to purchase property, violates that contract and, without legal justification, refuses to carry it into effect, he cannot profit by his own wrong and have the benefit of the equitable action of assumpsit to recover back any money paid by him by way of deposit or on account of the purchase. Nor is the other party, who has contracted and bound himself to sell, required to hold the property indefinitely, for the benefit of the intending purchaser, after the contract has been definitely repudiated by the latter. This is the doctrine of the case of Ketchum v. Evartson, 13 Johns. 358, cited on behalf of the appellant, and of numerous other cases. But the present case differs very greatly from that of Ketchum v. Evartson, and falls more appropriately within the qualification of that doctrine stated in the case of Leroy v. Beard, 8 How. 451, 469, and in the case of Davis v. Hall, 52 Md. 673, 681. For whatever may have been the fault of the appellee here in a legal [455] aspect upon the assumption that the title was good as it stood when his examiner made his report to him to the contrary, yet the ultimate fault which caused the failure of the contract was the fault of the appellant, or rather of the appellant’s agents, which must be'charged against him—their failure to notify the appellee of the final removal of the alleged defects in the title. Such being the condition of things, and the appellant having by his subsequent sale made it impossible now that the contract should be carried into effect, it does not seem just or equitable that he should retain the appellee’s money, when he has likewise received the purchase money from the sale actually made by him. Upon this ground, without reference to any other question raised by the record, we are of opinion that the judgment of the Supreme Court of the District of Columbia in the premises was right, and that it ought to be affirmed, with costs. And it is so ordered.