Ives v. Cress

• Decision Date: 03 April 1847
• Citation: 5 Pa. 118
• Parties: IVES <I>v.</I> CRESS.
• Court: Pennsylvania Supreme Court

5 Pa. 118

IVES v. CRESS.

Supreme Court of Pennsylvania.

March 26, 1847.

April 3, 1847.

March 26.

IN error from the Common Pleas of Montgomery county.

Mulvany, for plaintiff in error.—The only question is, whether a legal cause of action appears in the declaration, for that is an exact statement of the ground of complaint. As a general rule, the action must be brought in the name of the holder of the legal title; 3 Chit. Gen. Prac. 126; Crabb on Real Property, §§ 1864, 2241, Law Lib.; Wake v. Tinkler, 16 East 36; and in Pennsylvania a wrongdoer can never set up the outstanding equitable title as a defence. [Ch. J. — Suppose the Varneys had paid, could you have sued?] We showed an additional right in the damage by the loss of the sale. [Per Curiam. — The injury was an inability to pay, certainly you cannot sue on that account.] In Baker v. Sanderson, 3 Pick. 348, the threats of tenants to leave, and abatement of rent made by reason of the stoppage of water from a mill, was held to sustain the action. But it is settled, that the owner may sue for such injuries without actual damage; Ripka v. Sergeant, 7 Watts & Serg. 9; Seneca v. Auburn, 5 Hill, 170; Ashby v. White, Holt, 524; 14 How. St. Tr. 695, and a purchaser is a tenant at will until conditions are performed; Kenrick v. Smick, 7 Watts & Serg. 46. The tenant here being at will, the owner may maintain trespass; Sumner v. Tileston, 7 Pick. 198.

Whether the injury was to the inheritance was for the jury; Queen's College v. Hallet, 14 East, 489.

Boyer and Mallery, contrà.—No instance of such an action is to be found in the books; if sustained, there are two distinct rights of action given for one injury; nor is this an injury averred to be permanent, affecting the reversion. [Per Curiam. — You need not cite those cases: he is not a reversioner.] The Varneys were more than equitable owners, for the time had passed for the payment on which they were entitled to a conveyance; Sug. on Vend. 277-8; 2 Pow. on Cont. 61; Paine v. Meller, 6 Ves. 349. The rule is well settled in this state, that if the vendee is entitled to a deed, he is considered as having it; Wykoff v. Wykoff, 3 Watts & Serg. 481; Gregg v. Patterson, 9 Id. 197; 10 Serg. & Rawle, 39; Riddlesberger v. Mentzer, 7 Watts, 141. Here, there being no evidence, there is a presumption that the contract had been complied with.

Meredith, in reply.—The cases in Pennsylvania are of two classes on this point: where the vendee has performed all conditions of the sale, an action by either party will be sustained; and where the conditions have not been complied with, the holder of the legal title, as between himself and strangers, is the only one known by the law. The cases of naked trustees are another class. A recovery in this case would be a bar to any other action for the same cause. That the vendee and vendor, &c., have each distinct estates, is settled, Richter v. Selin, 8 Serg. & Rawle, 425, and as the law does not split the injury to the inheritance into several causes of action, as it does that to the possession and inheritance, it must be that an action will lie by him, who, being the holder of the legal fee-simple, has also a beneficial estate in the land, recognised by the law.

Whether the injury was to the possession only, does not arise in this case, for the judge took the point from the jury on another ground.

April 3. BELL, J.

All the errors assigned in this record may be comprehended in the single question whether, under the facts disclosed on the trial, the plaintiff can maintain this action. By his amended declaration, he avers an injury inflicted upon his estate and interest in the mills, water-power, and tract of land, while the same was in the possession of Theodore and Jesse Varney and Peter Longabaugh. It turns out that the wrong complained of was done in the years 1844 and 1845, while the Messrs. Varney and their tenant, Longabaugh, were in possession of the premises, under and by virtue of the agreement of July 12, 1843, having paid part of the purchase-money. They had thus acquired an equitable estate as vendees, for a valuable consideration, and, up to the rescission of the contract in October, 1846, are to be regarded as the true owners thereof, for every purpose for which an estate can be held. It was vendable as theirs, chargeable as theirs, capable of being encumbered as theirs, might have been devised, would have descended and been assets as theirs. So far are such vendees considered, in equity, as actually seised, that they must bear any loss that may happen to the estate between the agreement and the conveyance; and they will be entitled to any benefit which may accrue to it in the interval; Paine v. Meller, 6 Ves. jun. 349; Richter v. Selin, 8 Serg. & Rawle, 440. By the vendor's covenant to convey, the land is equitably severed from his ownership. Riddlesberger v. Mentzer, 7 Watts, 143. And so far is this principle carried, that if he put the vendee into possession, and afterwards re-enter, without his consent, the latter may maintain ejectment for the recovery of the possession, and also compel the vendor to account for the rents and profits during his wrongful possession, — and this, though the purchase-money remain unpaid; Wykoff v. Wykoff, 3 Watts & Serg. 481; Gregg v. Patterson, 9 Watts & Serg. 197. No question has or can be made, but that a right to sue for the injuries committed by the defendant, during the ownership of the vendees, resides in them, — and this, in respect of the then estate in the premises. But the plaintiff, Ives, complains of these same injuries, committed against his estate in the same land. This is the gravamen of his action. It is true, he also alleges the eventual loss of an advantageous sale, by reason of the wrongs committed by the defendant; but this must be regarded merely as the averment of a special injury, incident to and dependent on the principal...