Grove v. Hodges

• Citation: 55 Pa. 504
• Parties: Grove <I>versus</I> Hodges.
• Decision Date: 07 January 1867
• Court: United States State Supreme Court of Pennsylvania

55 Pa. 504

Grove versus Hodges.

Supreme Court of Pennsylvania.

October 28, 1867.

January 7, 1867.

October 28th 1867.

At Pittsburg, before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent.

Error to the Court of Common Pleas of Huntingdon county.

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J. W. Comly, and J. G. Miles, for plaintiff in error.—The deed to Grove vested a fee simple in the whole of the iron-ore, in the land described, as a corporeal hereditament, severed in law from the soil in which it was imbedded, passing to the grantee an absolute estate in the ore, as a substratum, and leaving the remaining soil and estate in it, to the grantor: Caldwell v. Fulton, 7 Casey 484; Harlan v. The Lehigh Coal and Navigation Co., 11 Ibid. 287, 292; Tiley v. Moyers, 1 Ibid. 399. The smallest pecuniary consideration, or one of pecuniary value though ever so small, even a barleycorn or peppercorn in a deed of bargain and sale, is sufficient to raise a use. Jackson v. Alexander, 3 Johnson's Rep. 492; Moore v. Bickham, 4 Binn. 4; Okison v. Patterson, 1 W. & S. 395; Krider v. Lafferty, 1 Whart. 315, 316; Shep. Touch. 222; 2 Inst. 672; Fox's Case, 8 Rep. 186; Barker v. Keat, 1 Mod. 262, 2 Id. 249. Where a consideration is expressed there can be no averment to the contrary to affect the binding force of the deed: Wilt v. Franklin, 1 Binn. 218.

1. Irwin's agreement was void for defect of authority in the assumed agent, to bind his supposed principal. It was an agreement in relation to land purporting to be under the seals of the contracting parties. Irwin's name and seal are affixed by his assumed agent, Miles McHugh, who had no authority under seal to make the contract in Irwin's name: Bellas v. Hays, 5 S. & R. 437; Co. Lit. 48 b; Gordon v. Bulkley, 14 S. & R. 331, 332; McDowell v. Simpson, 3 Watts 137-8; Cooper v. Rankin, 5 Binn. 615-16. But to meet this difficulty the defendant relied upon an asserted ratification by Irwin, evidenced by no act, save the putting of the agreement on record, which was of little significance: Chess v. Chess, 1 Penna. 32; Blight v. Schenck, 10 Barr 289; Greenleaf's Ev. § 66; Blood v. Goodrich, 9 Wend. 68; 12 Ibid. 525, s. c. Story on Agency, § 252; Hays & Wick v. Linn, 7 Watts 525; Paley on Agency, 158-59, 18 Law Lib. 3.

The ratification could, by adoption, have made it the written lease of the lessor; it would have been good even under the Statute of Frauds and Perjuries. But whatever binding force was given to it by the alleged ratification, must be traced to a lower grade of contract: to a simple parol agreement on the part of the ratifying party. Is there any difference between the principle which governs here, and the principle of Vicary v. Moore, 2 Watts 451, that the alteration of a "written contract by parol makes it all parol"? If there be none, then, if Garner had joined in Irwin's ratification of McHugh's act, the agreement would have been of no higher grade than parol on both sides, and would have been within the prohibitions of the Statute of Frauds and Perjuries, having no greater "force and effect than a lease or estate at will only" would have had. But Garner, neither by word nor act ever assented to Irwin's ratification. The obligation then on Irwin would rest on simple contract; on a parol agreement, whilst Garner, if bound, would be bound by an agreement under seal or by deed, in a case where both parties, upon the face of the instrument, were to be bound by obligations of the same grade. Here is the absence of mutuality of obligation which the instrument contemplated.

2. The agreement then being invalid as to Irwin, it was not binding upon Garner. There must be mutuality in a contract to render it binding: Staines v. Wainwright, 8 Scott 280; 6 Bing. N. C. 174; Harrison's Dig. tit. Contract, Mutuality; Lees v. Whitcomb, 5 Bing. 34; M. & P. 86; 3 C. & P. 289; Frontin v. Small, 2 Ld. Raym. 1418; Fisher v. Cuthell, 5 East's Rep. 497-8; Paley on Agency, 344, 345, 18th Law Lib.

If the act done, be intended to raise a duty in a third person, so as to subject him to damages for the non-performances of that duty, an unauthorized proceeding cannot be brought to have that effect by a subsequent sanction: Garrett v. Gonter, 6 Wright 143; Greenl. Ev., § 264.

3. The agreement being void at law, it could only acquire validity in equity by subsequent ratification by both Irwin and Garner: Pollard v. Shaaffer, 1 Dall. 212; 1 Fonb. Eq. 37.

Now the instrument set up by the defendant has been shown to be void at law, and in a court governed by "strict rules of law" must be so adjudged. Where then is relief to be had by the party attempting to enforce it but in a court of equity, or in a court where chancery rules are applied? If the confirmation was of any value, it must be made so, not in a court of law, but in a court of equity, or in a court where an action might be entertained based upon equitable principles.

4. Would a chancellor ever enforce the agreement under the facts proved and offered to be proved? Irwin was bound to exercise the rights granted to him within a reasonable time, as no consideration was paid for what his alienee now claims to have been vested in him. If he was bound to no duty and might exercise his rights at his own will and pleasure the contract would be unreasonable, and without any mutuality or reciprocity of benefit: Bodine v. Glading, 9 Harris 53, citing 1 Sch. & Lef.; 18 Com. Dig. 411; Newl. on Cont. 153; Watson v. O'Hern, 6 Watts 362; Sharp v. Wright, 28 Beav. 150; Rogers on Mines, Minerals and Quarries 289, 376, 377; Rogers v. Brenton, 10 Q. B. 64; McBride v. Weeks, 22 Beav. 533.

In contracts for the lease of working mines, time, though not named, is from the fluctuating nature of the property, considered as of the essence of the contract, and the intended lessee may therefore fix a reasonable time for completion, and on the lessor's default may rescind the contract: 2 Powell on Cont. 161; Bellas & Hays, supra; Gibson v. Patterson, 1 Atk. 12; Peebles v. Reading, 8 S. & R. 493; Dalzell v. Crawford, 1 Pars. 37; 1 Sugden 501; Patterson v. Martz, 8 Watts 379, 380; Tiernan v. Roland, 3 Harris 438; Taylor v. Longworth, 14 Pet. 174; Milward v. Earl Thanet, 5 Ves. 720.

But the agreement was procured by misrepresentations and false inducements, in regard to the erection of furnaces: Paley on Agency 256, 18 Law Lib.; Cadman v. Horner, 18 Ves. 10, note 1; Sugden's Vendors 190, 191; Hornett v. Yielding, 2 Sch. & Lef. 553.

5. Having been procured by misrepresentation and false inducements as before shown, the agreement was void, ab initio, on the ground of fraud: Cochran v. Cummings, 4 Dall. 250; Gilbert v. Hoffman, 2 Watts 66; Lowry v. Pinson, 2 Bailey 324; 2 U. S. Dig. 449; Story's Eq. Jur. §§ 186, 192; Christ v. Diffenbach, 1 S. & R. 465; Hill v. Ely, 5 Id. 366; Clement v. Youngman, 4 Wright 346; Youngman v. Linn, 2 P. F. Smith 413; Harlan v. The Lehigh Nav. and Coal Co., 11 Casey 287; Beaupland v. McKeen, 4 Id. 130.

6. Irwin & Garner's agreement, at best, was but an executory contract, which equity will not enforce under the facts proved and offered to be proved. If an executed contract or conveyance of an incorporeal hereditament can only be regarded as a deed of bargain and sale, its language is applicable only to that species of conveyance, and it is void for want of a pecuniary or valuable consideration expressed: Moore v. Bickham & West, 4 Binn. 3, 4; Jackson v. Sebring, 16 Johns. 515; Jackson v. Florence, 16 Id. 47; Jackson v. Delancy, 4 Cowan 427; Jackson v. Caldwell, 1 Id. 623; Jackson v. Pike, 9 Cowan 69.

But the construction claimed for the defendant is not sound, and the agreement was to every intent executory. He invaded the rights of the plaintiff who was in possession of the ore vein, and gained whatever possession he had by trespass and wrong. A Court of Chancery would restrain him by injunction: 2 Story's Eq. Jur. § 929; Thomas v. Oakley, 18 Ves. 184; Livingston v. Livingston, 6 Johns. C. R. 497; Field v. Beaumont, 1 Swanst. 208; Smith v. Collyer, 8 Ves. 90; Mitchell v. Dors, 6 Id. 147; Hanson v. Gardiner, 7 Id. 305, 311, note 1; Courthope v. Mapplesden, 10 Id. 291; 2 Story's Eq. §§ 695, 696, 697, 698; 2 Bl. Com. 443; 2 Inst. 513; Stouffer v. Coleman, 1 Yeates 393; Jackson v. Myers, 3 Johns. 388; Jackson v. Clark, Id. 424; 2 Bl. Com. 317; Co. Litt. 9, 172; Morgan v. Bissell, 3 Taunt. 71; Campbell v. Sproat, cited by the counsel in Stauffer v. Coleman, 1 Yeates 394, 395, 397; Neave v. Jenkins, 2 Id. 108; Sherman v. Dill, 4 Id. 298; Williams v. Bentley, 3 Casey 294; Maus v. Montgomery, 11 S. & R. 329; Dawson v. McGill, 4 Whart. 230; Stokely v. Trout, 3 Watts 164; Bear v. Whisler, 7 Ibid. 150.

7. If it ever had any validity it was barred by the Act of Limitations of the 22d April 1856, § 6, Purd. 654, pl. 13, Pamph. L. 533: Price on Limitations 156; Peebles v. Reading, 8 S. & R. 493; Price on Liens 156-7; Halsey v. Tate, 2 P. F. Smith 314; Randall v. Van Vechton, 19 Johns. 64; Weyman v. Hallowell, 14 Mass. 58; Salem Bank v. Gloucester Bank, 17 Id. 29; Cooper v. Lampeter, 8 Watts 128.

John Scott (with whom was R. B. Petriken), for defendant in error.—The argument and authorities for the plaintiff in error would be pertinent if this were an action of covenant founded upon this agreement as Irwin's deed. It may not be his deed, but it is not for that reason void at law. The reason why counsel deem it "void at law" seems to be that the evidence of ratification is insufficient, an argument which impliedly admits that it is at most but voidable, and not void: Bellas v. Hays, 5 S. & R. 438. If mutuality of remedy had been essential, the precedent authority given by Irwin to McHugh to procure leases, and his subsequent acceptance and adoption of them as "signed for him," would enable Garner to maintain...