Brewer v. Fleming
| Decision Date | 08 January 1866 |
| Citation | 51 Pa. 102 |
| Parties | Brewer <I>et al. versus</I> Fleming. |
| Court | Pennsylvania Supreme Court |
Purviance, Lathy, and Reed, for plaintiffs.—The treasurer's deed, not having been acknowledged until after that officer went out of office, and there having been no proof of its delivery during his term, should not have been admitted in evidence: Donnel v. Bellas, 10 Casey 159. The preliminary proof of the loss of the other deed was not sufficient to admit parol proof of its contents. Clover, the agent of Guthrie, should have been called to supply the links in the proof of loss. The part of the testimony of Craig ruled out, should have been admitted as showing that the defendants desired a conveyance from Bredin & Campbell, for the security of the money they had advanced for it. What was proposed to be proved by Coogan would have tended to show fraud on the part of Guthrie; in connection with the contract, tender and other parts of the transaction, and in view of the large latitude allowed in questions of fraud, should have been received.
The court took both the fact of the tender and its good faith from the jury, in charging that under the circumstances it was sufficient, notwithstanding they technically affirmed the sixth point.
The court did violence to the terms of the contract in saying that the defendants acquired a right to a conveyance of the legal title "only in the event of their election to buy from" the plaintiff. The words were those of present conveyance of the equitable title, and authority to obtain the legal title at once. The election of defendants not to keep the land, and their notice to plaintiff, would of themselves be a complete rescission; they would still have the right to the legal title to secure them against a failure of plaintiff to refund.
Affirming the plaintiff's first point was determining his right to recover on the tax title alone, and thus took the whole case from the jury, without regard to its other branches; and was flat denial of the defendants' sixth point, which was nominally affirmed.
When by the contract the equitable title of Fleming was transferred to the defendants, the right of possession passed to them, and when they obtained the legal title that right was not lessened. The plaintiff had then only an equity to the extent of the unpaid purchase-money, and a right to reconveyance after notice from defendants of their election to rescind, and proper tender by plaintiff. This right could be enforced only by ejectment.
The tender if good should have been kept up by bringing the money into court: Snyder v. Wolfley, 8 S. & R. 332; Peebles v. Reading, Id. 457. Replevin is a legal, not an equitable remedy. In ejectment the court may direct a conditional verdict to protect the defendant without deposit of money, but replevin cannot be so moulded. The answer of the court to the defendants seventh and eighth points, took the whole questions of disputed facts from the jury, by saying that the defendants had refused to be the plaintiff's vendees by their notice of refusal.
The Act of Congress makes a deed invalid without a sufficient stamp. The question of the actual value of the land should have been submitted to the jury.
In this case title to land has been permitted to be tried in replevin. The title to land may be incidentally brought in question in transitory actions against a mere trespasser; when both parties claim the land, replevin must fail and ejectment be resorted to: Mather v. Trinity Church, 8 S. & R. 511; Powell v. Smith, 2 Watts 127; Harlan v. Harlan, 3 Harris 513; Baker v. Howell, 6 S. & R. 476, 481. The plaintiff if he has the right can recover the land in ejectment, and also for the timber taken as mesne profits, and can restrain the cutting by estrepement.
If the plaintiff was to recover a judgment in replevin, the title to the land might be found afterwards to be in the defendants, and yet he could not recover back the price of the timber, that being res adjudicata.
Wright v. Guier decides only that trover will lie for wood cut without colour of title. Clement v. Wright, 4 Wright 250, is to the same point.
W. L. Corbett, for defendant in error.—The Acts of Assembly do not require deeds from treasurers to the county commissioners to be acknowledged, and the presumption is that the deed was delivered at its date. Although the Act of 1815 gives the form of the deed, and its acknowledgment before a justice of the peace, its acknowledgment before a judge is good: McCoy v. Michew, 7 W. & S. 389.
A treasurer may acknowledge a deed after his term of office has expired: Kennedy v. Daily, 6 Watts 271. In Donnel v. Bellas, 10 Barr 341, 1 Jones 341, 10 Casey 157, the deed was acknowledged during the treasurer's term, but no surplus bond was filed, a large portion of the money remained unpaid, and the deed was undelivered for five years.
It is not shown that Clover ever received the lost letter, and to enforce the rule with the strictness asked for, would make the administration of justice almost an impracticable thing.
The testimony of Craig, which was rejected, was detailing the conversation of a third person, who could have been examined. Coogan's rejected testimony was irrelevant. As to the instruction in regard to the tender, the court simply said that form of the tender was sufficient; the question of bad faith was submitted to the jury in the answer to defendant's sixth point.
The assignment by Fleming and the receipt are all one transaction; the defendants were to pay the purchase-money only at the expiration of sixty days, and it was not even then due to Bredin & Campbell. In addition to this, if the money was not tendered in four months, the assignment of the contracts for the land is left in full force. This would have taken away Fleming's equities in the land for $2550, if he had not tendered the money. The defendants, in bad faith, procure a conveyance from Bredin & Campbell, before they had a right to do it, pay the first payment before it fell due, gave their notes, &c., for the rest, and then say Fleming must tender the money he had received, and the money they had paid Bredin & Campbell, and procure a release from Campbell & Bredin of their notes, &c. These facts justify the suspicion of bad faith on the part of the defendants.
The defendants have elected not to take the land, and the plaintiff having tendered the money, he was fully restored to his right as it existed before January 27th 1862.
Plaintiff was entitled to recover on both titles, but if one gave a right to recover, a mistake in the court as to the other would not be a cause for reversal.
The assignment and receipt were but one contract: Jones v. Pennel, 1 Phila. 539, 19 Cons. 63; Blein v. Torode, Dist. Ct. Phila., 17 Leg. Int. 332. The contract was executory; all that plaintiff had to show was his readiness to pay back the money: Henry v. Raiman, 1 Casey 361; Williams v. Bentley, 3 Id. 301. The defendants took the title from Bredin & Campbell against their express stipulation, and had no right to ask a release from Bredin & Campbell.
As to the stamp. When the consideration is bonâ fide, the amount will govern the amount of the stamp.
It is well settled that in trover, &c., title of wild lands unoccupied can be tried: Mather v. Trinity Church, 3 S. & R. 509; Powell v. Smith, 2 Watts 127: Harlan v. Harlan, 3 Harris 513; are not in conflict with this. The latter two sustain the principle that replevin in such case as this may be sustained; as do Wright v. Guier, 9 Watts 174; Clement v. Wright, 4 Wright 250.
The opinion of the court was delivered, January 8th 1866, by AGNEW, J.
Notwithstanding the numerous errors assigned, there are but two principal questions in this case; the first involving the relation of Williams, Black & Co. to the land, and the second the form of action. Fleming, the plaintiff below, brought replevin for ten thousand feet of timber cut by George Frazier for Williams, Black & Co., upon a tract of land claimed by both parties. Fleming claims as equitable owner of the land, through a purchase by Isaac Clover from Lane & Mylert in 1854; Williams, Black & Co. claim the same land, first by purchase from Fleming, and secondly by conveyance of the legal title to them from Bredin & Campbell, purchasers of Lane & Mylert's title.
But $500 having been paid on Clover's purchase from Lane & Mylert, Campbell & Bredin were desirous to obtain payment of the balance, or put an end to the contract, and, therefore, proposed to take $3500 in full of the balance, if a good purchaser for the land could be found within a short time. J. W. Guthrie acting as agent for Fleming proposed a sale to Williams, Black & Co. at $8 per acre for the whole, which the latter accepted. The writings consisted of two instruments, dated the 27th January 1862. In one, Guthrie as attorney of Fleming assigned to them all the estate and title of Fleming, and authorized Campbell & Bredin to convey to them on their paying to Campbell & Bredin $3500, in certain instalments. In the other, which was partly in the form of a receipt, but was subscribed by both parties, he acknowledged the receipt of $2500 upon a sale of the land, and agreed that Williams, Black & Co., who lived in Pittsburgh, should have sixty days to examine the lands, and if at the expiration of that time they did not pay the balance coming to Campbell & Bredin, and the balance to Fleming, calculating the whole land at $8...
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