Bonner v. Randal et Ux.

• Decision Date: 20 June 1925
• Citation: 7 D.&C. 294
• Parties: Bonner v. Randal et ux.
• Court: Pennsylvania Supreme Court

7 D.&C. 294

Bonner v. Randal et ux.

District Court of Pennsylvania.

June 20, 1925.

Equity — Specific performance — Married women — Parties.

1. A married woman who has joined in a written agreement for the sale of her husband's land may be made a party defendant in a bill in equity to enforce the specific performance of such agreement.

Equity — Specific performance — Time — Waiver — Vendor and vendee — Forfeiture.

2. Although the time of settlement may have been of the essence of an agreement for the sale of land, the vendor by delaying to furnish a necessary survey and by other delays may be deemed to have waived the performance as to time.

3. Equity abhors a forfeiture which works a loss contrary to equity.

4. If a vendor of land desires performance by the vendee at the time fixed for the performance and the covenants are mutual, the former must either perform or tender performance of his part of the contract.

5. Where, before tender of performance by the vendor, no material change has taken place as to the value of the property or the condition of the parties, and where time admits of compensation, the mere non-payment of the purchase money by the vendee on the day fixed and a subsequent delay by him for a relatively long time thereafter will not excuse the vendor from the performance of his contract.

6. A delay of one year forms no objection to the assertion by the vendee of his equity where there has been mutual forbearance of the vendor and vendee on account of embarrassment of the title of the former.

7. A claim otherwise just does not become stale by laches merely because a plaintiff does not file his bill by one year as soon as he might have done.

Demurrer to bill in equity. C. P. Montgomery Co., June T., 1924, No. 7.

D. Yeakle Miller, for plaintiff.

Larzelere, Wright & Larzelere, for defendants.

WILLIAMS, J., June 20, 1925.—

On the 29th day of August, last year, John S. Bonner, the plaintiff, filed the bill against Harry L. Randal, M. D., and his wife, Irene B. Randal, the defendants, to compel their specific performance of a written, sealed and delivered contract, made the 12th day of May, 1923, between the defendants and one Edmund F. McCool and, subsequently, for a valuable consideration, by McCool assigned, transferred and set over unto the plaintiff, wherein the defendants agreed to sell and convey and McCool agreed to purchase the lot, or piece, of ground described in the bill.

The first reason set forth to sustain the demurrer is that no right of action in equity exists against Irene B. Randal, because (it is said) she is no party to the agreement. As a matter of fact, however, together with her husband she did sign, seal and deliver to McCool the contract of sale and, therefore, a right of action in equity, if it exists against her husband, lies, also, against her.

Ever since, if not before, the passage of the Act of April 11, 1848, P. L. 536-8, section 6, P. L. 536-7, a married woman could sell, or mortgage, her separate real estate, or assign her personal property, as security for the debts of her husband: 3 Johns. Chan. Rep. 129; Jamison v. Jamison, 3 Whart. 457 (1838), Sergeant, J.; Hoover v. Samaritan Society, 4 Whart. 445 (1839), Kennedy, J.; Sheidle v. Weishlee, 16 Pa. 134 (1851); Black v. Galway, 24 Pa. 18 (1854), Lewis, J.; Miner v. Graham, 24 Pa. 491 (1855), Lewis, C. J.; Lytle's Appeal, 36 Pa. 131 (1860), Lowrie, C. J.; Haffey v. Carey, 73 Pa. 431 (1873), Sharswood, J.; Hagenbuch and Wife v. Phillips, 112 Pa. 284 (1886); Kulp v. Brant, 162 Pa. 222 (1894), Dean, J.; Du Bois Deposit Bank v. Kuntz, 175 Pa. 432 (1896); and Kuhn v. Ogilvie, 178 Pa. 303 (1896), Mitchell, J.; and, since the passage of the Act of June 8, 1893, P. L. 344-5 — the general intent of which is so plainly an enlargement of the contractual capacity of a married woman that nothing less than explicit negative words should be construed as narrowing powers admittedly possessed before the passage of the act: Kuhn v. Ogilvie, supra — the capacity of a married woman to contract is the rule and her incapacity so to do is the exception. In a contractual way she may now do anything except mortgage, or convey, her real property without the joinder of her husband, or become accommodation maker, or endorser, or guarantor, or surety, for another. Formerly, her capacity to contract was exceptional and her disability general; now, the disability is exceptional and the capacity general: Patrick & Co. v. Smith, 165 Pa. 526 (1895), Dean, J.; Bartholomew v. Allentown National Bank, 260 Pa. 509 (1918), Brown, C. J.; and Newhall, Assignee, v. Arnett, 279 Pa. 317 (1924), Walling, J., page 321.

In Brown v. Pitcairn, 148 Pa. 387 (1892), Sterrett, J., upon which counsel for the defendants solely rely and in which the decree of the court below was held to be erroneous in that it included the wife of the defendant, the action had been brought against John Pitcairn alone. His wife was not a party to the proceeding. Here, Mrs. Randal has been joined as a party defendant with her husband.

The second reason set forth is that the description of the lot, as given in the first paragraph of the bill, was accurate and particular and needed no survey and that for such survey no provision was made.

The lot was only a part of a larger tract of land owned by the defendant husband, who — a short time prior to the 11th day of January, 1923 — had subdivided the tract into building lots, and, in the agreement of May 12th — a copy of which is attached to and made a part of the bill — the piece of ground was described as being situate on the northwest side of the Chestnut Hill and Spring House Turnpike (the Bethlehem Pike) and beginning at the point of intersection of the said turnpike with a proposed road, not yet laid out and still unnamed. It was, therefore, necessary that the purchaser — if he was to know where his lot began and to be able to have a proper deed made for his land — should be furnished with the location of the proposed road when laid out and named. Evidently, Dr. Randal, himself, so felt, for his agent, the Chelten Trust Company, of Germantown, in the City and County of Philadelphia, agreed to and — although not until the 20th day of June — actually did furnish a correct survey to the plaintiff.

The third reason given in support of the demurrer is that the bill discloses no compliance by the plaintiff with the provision in the agreement that settlement was to be made within thirty days from May 12th, time being of the essence of the contract.

The failure of the defendant husband, through his agent, to provide the plaintiff with the necessary information as to the location of the lot until the expiration of twelve days after the termination of the thirty-day period within which settlement was to take place has already been noted. It is to be observed, also, that, immediately upon receipt by the plaintiff of the correct survey, he forwarded it, together with the other data requisite for the preparation of a deed, to an attorney, who, having drawn the deed, sent it and the survey to a reputable title company, by which the contract said the title was to be insurable and which, on July 9th, issued a settlement certificate listing certain objections to be removed by the defendants and, on July 13th, delivered the deed to the defendants for their execution; and that, thereafter, in the attempt to remove several of the objections appearing on the settlement certificate, considerable time was consumed by Dr. Randal, who, so late as the 6th day of August, requested the mailing to him of a duplicate certificate. It may well be, therefore, that the conduct, for almost sixty days after the 11th day of June, of the male defendant amounted to a waiver by him of the time provision contained in the contract of sale.

While, broadly speaking, it is undoubtedly true that, although, at one time, serious doubt was entertained as to whether time could be made of the essence of a contract, the power of the parties to an agreement for the sale of real estate so to do must now be conceded and, hence, in those cases where, without just cause and without a subsequent waiver, there is a default in payment at the day, a court of chancery will not interfere to help the party in default: Mad. Chan. 416, 417; Sug. Ven. 416; Fonbl. Eq. 48, note; Dauchy v. Pond, 9 Watts, 49 (1839), Rogers, J., page 51; Moore v. Shenk, 3 Pa. 13 (1846), Gibson, C. J.; D'Arras v. Keyser, 26 Pa. 249 (1856), Woodward, J., page 254; and Becker v. Smith, 59 Pa. 469 (1868), Agnew, J., page 472; yet, principles of equity are more delicate and subtle in their texture than are rules of law and the omission by the plaintiff to tender payment at the day may be unimportant, for the true rule, as given by Chancellor Kent, in Benedict v. Lynch, 1 Johns Chan. Rep. 374, is that it is only where there is nothing in the acts or conduct of the other party amounting to acquiescence in the delay that the court will not interfere: Fisher v. Worrall, 5 W. & S. 478 (1843), Gibson, C. J., page 485. And, in this connection, also, sight must not be lost of the general principles that, according to the rule of equity, time is not of the essence of a contract: Bodine v. Glading, 21 Pa. 50 (1853), Lewis, J., page 54; and that equity abhors every forfeiture which works a loss contrary to equity: Brown v. Vandergrift, 80 Pa. 142 (1875), Agnew, C. J., page 148; and Axford v. Thomas et al., 160 Pa. 8 (1894), page 11.

Although there may have been a technical breach of contract as to time of performance on the part of the plaintiff, it is to be remembered that the covenants of the vendors and vendee were mutual and called for simultaneous performance and that the bill does not show that the sellers ever tendered to the buyer a deed for the premises. Likewise, it is not to be forgotten that nowhere in the bill does it appear that, before tender of performance by the defendants, if such tender were...