Bodine v. Glading

• Decision Date: 01 January 1853
• Citation: 21 Pa. 50
• Parties: Bodine versus Glading.
• Court: Pennsylvania Supreme Court

21 Pa. 50

Bodine versus Glading.

Supreme Court of Pennsylvania.

APPEAL from the decree of the Common Pleas of Philadelphia county, overruling exceptions to a master's report as to the time satisfactory evidence of title was exhibited, and dismissing a bill asking for specific performance of a contract of sale of real estate.

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McMurtrie, for plaintiff in error.—It was contended that the title was perfect when the sale was made. That the deed was acknowledged so as to bar dower in Massachusetts. That by our Act of 1840, section 15, to such an acknowledgment the same effect is given, as if it had been taken before a justice in Pennsylvania. Also that the Act of 1851 cures all such defects in deeds recorded more than thirty years, as was the case here.

2. Time was not of the essence of the contract. In Equity the expiration of the time fixed is not a defence, except when it has been made essential by express agreement, or where from the circumstances of the case, such must have been the intention of the parties: 2 Harris 143, Remington v. Irvine; 3 Harris 429, Tiernan v. Roland; 2 Penna. Rep. 211.

When time is essential, it may be waived by the acts of the parties, (6 Jurist 725, Boyes v. Liddall; 4 Y. & Coll. 505, Ex parte Gardiner), and in this case the purchaser dealt with the contract as existing after the fifteen days had elapsed.

3. Where time is not essential, or being essential has been waived, the purchaser cannot abruptly rescind the contract for nonproduction of evidence of title. He must give notice of his intention, and allow what under the circumstances is a reasonable time: 1 Hoff. Ch. 139. Hare 158; 6 Beav. 124; 2 Id. 183; 3 Harris 429.

4. The vendor's threat to sell did not preclude him from having the contract enforced in equity: 4 Shepley 164; 3 Gilman 626; Dart. on Vendors 516; 14 Jurist 255; Daniel Ch. Pr. vol. 2, p. 961.

The purchaser did not engage in the flour business till August, 1851; not till after he had received notice of the intention of the vendor to proceed for specific performance.

G.W. Biddle and Cadwalader, for the respondent.—It was contended, as before stated, that the laws of Massachusetts did not provide for the separate examination of a married woman in regard to her execution of a conveyance purporting to pass her interest in real estate: 5 Mass. 449-454-463. It was also contended that the objection on account of the certificate as to her acknowledgment, was operative till the production in April, 1852, of the proof of her death; and that it was acquiesced in by the assignee at least as late as June, 1851. It was further contended that where the acknowledgment was, as in this case, taken before a justice in another state, who was not presumed to have been acquainted with our law and therefore not presumed to comply with its requirements, the defect was not cured by our Acts of 1840 and 1850.

2. It was contended that as by the terms of sale the vendor had the right to re-sell, time was, in this case, of the essence of the contract. Also that Glading, after waiting a reasonable time, declared his intention of abandoning the contract on account of the defect, and of using his money in another way; and that this intention was communicated to the plaintiff's agent; and he has entered into business. 3. The letters referred to were not sworn to. 4. The vendor's declaration of his purpose to sell at the purchaser's risk, under the clause in the conditions of sale, ought in equity to preclude him from enforcing specifically the contract in question.

The opinion of the Court was delivered by LEWIS, J.

This is a bill for the specific performance of a contract for the purchase of real estate, sold at auction, under a written condition of the sale, that "the cash is to be paid within fifteen days from sale, or the property may be resold at the risk and expense of the purchaser." The sale was made on the 10th April, 1851, and the title was to be "undoubted." Objections were made to the title on the ground of the defective acknowledgment by the wife of a person through whom the title was derived. This objection was afterwards removed by producing evidence of her death. On the 25th June, 1851, the vendor addressed a letter to the vendee, requesting the latter to comply with the terms of sale, and take the property, and stating that otherwise he would ...