Thurston v. Franklin College

• Decision Date: 26 May 1851
• Citation: 16 Pa. 154
• Court: Pennsylvania Supreme Court
• Parties: Thurston <I>versus</I> Franklin College.

16 Pa. 154

Thurston versus Franklin College.

Supreme Court of Pennsylvania.

May 26, 1851.

ERROR to the Common Pleas of Lancaster county.

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Amwake and Mathiot, for plaintiffs in error.—It was contended that no complete cause of action had accrued to plaintiff before the 10th day of May 1843, when he was evicted by defendant's vendee, and, therefore, the statute of limitations was not a bar to plaintiff's action.

That there was no evidence of breach of contract on the part of the vendor until upon the trial of the ejectment. The commencement of the action was no notice, for it was not inconsistent with an affirmance of the contract, and therefore the presumption was a reasonable one that the suit was instituted for the recovery of the balance of the purchase-money. But on the case being called for

trial, the defendant first ascertained that the plaintiff wholly repudiated the contract; and the six years commenced running from that time: Jones v. Trimble, 3 Rawle 381; McCaskill v. McCaskill, 3 Rich. 196; Baricks v. Edwards, 11 Paige 289; Leinhart v. Forringer, 1 Pa. Rep. 492; Walker v. Bradley, 3 Pick. 261; Shearman v. Akin, 4 Pick. 296; Eames v. Savage, 14 Mass. Rep. 425; Walter v. Walter, 1 Whar. 292; Richards v. Allen, 5 Shep. 296; Hall v. Vandegrift, 3 Bin. 374; Kerns v. Schoonmaker, 4 Ham. 331; Mercer v. Watson, 1 Watts 330.

It is further contended that in this case the defendant acted fraudulently in suffering the plaintiff to remain in possession of the premises, and make valuable improvements on the same, on the strength and faith of the contract entered into to give a deed of conveyance for the same, and afterwards selling the property with the improvements thereon to John McCord, who evicted the plaintiff. The court ought therefore to have submitted the same to the jury as a matter of fact, for them to decide whether the plaintiff acted fraudulently or not; and, if fraudulently, the statute would not operate, or at least only commence running when the fraud was consummated, to wit, the 10th day of May 1843, the time plaintiff was evicted by defendant's vendee: Pennock v. Freeman, 1 Watts 410; Jones v. Conoway, 4 Yeates 109.

Thompson, for defendant.—The deed to McCord and notice of it put it into the power of Taylor to rescind the contract, and the right of action for a breach of it occurred: 1 Pa. Rep. 494, Leinhart v. Forringer. The conveyance and notice was...