Dentler v. Brown

• Decision Date: 01 July 1849
• Parties: WILLIAM C. DENTLER, Administrator of WILLIAM A. CARR, deceased, v. WILLIAM BROWN.
• Court: Pennsylvania Supreme Court

11 Pa. 295

WILLIAM C. DENTLER, Administrator of WILLIAM A. CARR, deceased, v. WILLIAM BROWN.

Supreme Court of Pennsylvania.

WRIT of error to the Common Pleas of Lycoming.

Youngman, for the plaintiff in error.—The defendant being, or having the power of putting himself, in possession, had the means

of payment in his own hands, of the only encumbrance that brought his title in danger, and was bound to discharge the same, and deduct it from the purchase-money: Renshaw v. Gans, 7 Barr, 120; Harper v. Jefferies, 5 Wharton, 40; M'Ginnis v. Noble, 7 W. & S. 454. If the principal consideration with Carr, in entering into the contract, was to have the liens removed, and Brown so understood it, the sale on the Shippen mortgage cannot avail as a defence in this suit: Campbell v. Shrum, 3 W. 60. The defendant had notice of the amount due on that mortgage, and the enforced payment of it is not now a sufficient answer to plaintiff: 3 W. 60; Magaw v. Lothrop, 4 W. & S. 316. The defendant should have applied to the court for an order on sheriff to sell Carr's portion of the land before selling that sold to Brown: 9 Johns. R. 127; Mevey's Appeal, 4 Barr, 80; 2 W. 256.

Armstrong, for defendant in error, contended that the agreement was rescinded by the parties, and that the plaintiff never complied with his part of the contract. He cited Youst v. Martin, 3 S. & R. 423; 4 W. & S. 316; Moore v. Shelley, 2 W. 256; Ballard v. Walker, 3 Johns. Cases, 60; Love v. Jones, 4 W. 465; Huber v. Burke, 11 S. & R. 238.

The opinion of this court was delivered by BELL, J.

It is not to be disputed that the principal consideration of the proposed conveyance from Carr to Brown was the covenant of the latter to apply the several instalments of purchase-money as they respectively fell due, in discharge and satisfaction of the mortgage executed by Carr to Margaret Shippen, of the judgment recovered by Morrison & Co., and of the book account held by Brown against Carr. But it is also apparent that, at the time of the execution of the article of agreement of September 1842, both parties contemplated the mortgagee would be willing to await payment of her mortgage by successive gales, at the times fixed for the several payments to be made by Brown. The article itself furnishes indubitable evidence of this; but were it doubtful in this particular, all hesitancy is put an end to by the testimony of Samuel Derr, showing the construction put upon this instrument by the parties themselves. He swears, that in 1843, Carr told him of an intended visit to Pottsville, with a view to make some arrangement with Dr. Shippen, the agent of Mrs. Shippen, for the payment of the mortgage, with the proceeds of the land sold to Brown, and that after Carr's return, he informed the witness he had failed of his errand; that he could get no arrangement made, and, consequently, "the whole matter between him and Brown was at an end." An attempt made by Brown himself, to induce Dr. Shippen to accept the instalments, as they fell due under his agreement, in payment of the mortgage, met with no better success. The agent utterly refused to accede to the terms of that agreement, and shortly afterwards caused proceedings to be instituted upon the mortgage, under which the mortgaged premises were finally sold to a stranger.

It appears also, that in discharge of his undertaking, Brown actually paid off the judgment due to Morrison & Co., and took an assignment of the judgment to himself. This assignment, is, however, of no value, for it is conceded the estate of Carr is insolvent. In addition to the loss thus incurred, the effect of this action is to make him answer in damages for non-payment of the purchase-money of an estate which he never got, and this on the ground that he has been guilty of such negligence as in equity makes him liable thus to answer. But this notion is founded in an entire...