Herrod v. Blackburn

• Decision Date: 04 November 1867
• Citation: 56 Pa. 103
• Parties: Herrod <I>versus</I> Blackburn.
• Court: Pennsylvania Supreme Court

Page 103

56 Pa. 103

Herrod versus Blackburn.

Supreme Court of Pennsylvania.

October 29, 1867.

November 4, 1867.

October 29th 1867.

Before WOODWARD, C. J., THOMPSON, STRONG, READ and AGNEW, JJ.

Error to the Court of Common Pleas of Westmoreland county: No. 86, to October and November Term 1866 H. D. Foster, for plaintiff in error, cited Miles v. Stevens, 3 Barr 21; Ley v. Huber, 3 Watts 368; Nicol v. Carr, 11 Casey 382; McKeen v. Beaupland, Id. 488; Gans v. Renshaw, 2 Barr 34; Theological Seminary v. Wall, 8 Wright 353; Commonwealth v. Judges of Cumberland County, 1 S. & R. 198; Clow v. Woods, 5 Id. 284; Hart v. Porter, Id. 201.

J. A. Hunter and H. P. Laird, for defendants in error, cited Moss v. Hanson, 5 Harris 379; Kerr v. Kitchen, Id. 434.

The opinion of the court was delivered, November 4th 1867, by STRONG, J.

The argument of the defendant below rests upon a misapprehension of the decisions cited by him, and of the reasons why a vendee under articles of agreement for the purchase and sale of land is sometimes permitted to withhold the purchase-money, notwithstanding his covenant to pay. When the subject of the contract is the land itself, the purchaser has a right to a title to it clear of all defects and encumbrances, in the absence of any stipulation to the contrary, and hence when called upon for the price, he may defend by showing that the title offered is defective. In such a case he does not get what he bargained for, and what the vendor covenanted to give. There is a failure in whole or in part of the consideration for his own engagements. But when, as in this case, a vendor has bound himself to convey, not the land, but his right, title and claim to the land, there is no implication of a covenant that he has a good title. When, therefore, he conveys all his claim whatever it may be, he gives to the vendee the subject of the contract, and there is no failure of consideration for the vendee's promise to pay. It would be absurd to hold that there is no difference in legal effect between a covenant to convey a tract of land and a covenant to convey the covenantor's right, title and claim to it. The difference is too well understood to be denied. Imperfect titles everywhere abound, and they are the subject of sale. We have equitable titles, conflicting equities, tax titles not consummate and many others. It would be a novelty were we to decide that a contract to convey one of these is an engagement to assure to the vendee whatever...