Hollenbaugh v. Morrison , 9 Watts 408 ( 1840 )

The opinion of the court was delivered by

Rogers J.

By the conditions of sale, the purchaser was only

bound to pay the purchase-money, when he received a title clear of incumbrance. Have the plaintiffs tendered such a title, or is it now in their power to give such a title, as is stipulated in the agreement? It is very evident that in every essential point the plaintiffs have entirely failed. At a very early day, the defendant made objections to the title, and, for the purpose of removing them, the parties resorted to the expedient of a sale, under an order of the orphans’ court. And this would have been satisfactory, had it not subsequently appeared that John Hollenbaugh, from whom the plaintiffs derive title, left a will, which has been duly proved. In the will he authorizes his executors to rent the land till the death of the widow, with authority, after her death, to sell, and divide the money among his children. On the production of the will at the trial, it was clear that the title derived from the orphans’ court sale was bad, for the orphans’ court has jurisdiction over the matter in cases of intestacy only. But a title from the widow and heirs would be good, and this the plaintiffs procured and tendered in part, but, in consequence of the minority of some or at least one of the heirs, the title quoad remains imperfect. The court were then right in ruling that this was an insurmountable objection to a recovery, and that it would be idle to receive testimony which would not avail the plaintiff. But it is said that the defendant has been guilty of trick, artifice and fraud, in purchasing the property for a dishonest purpose; but of this we see little, if any, evidence. Morrison has, at all times, insisted (and this surely is not very unreasonable) that the plaintiffs should fulfil their part of the contract, before they undertook to exact performance from him. There is nothing that appears on the record which convinces me, that, if the plaintiffs had been in a condition to perform their part of the contract, any delay would have occurred in the payment of the purchase-money. Idle, loose declarations, perhaps misrepresented, or, at any rate, imperfectly understood, are a very unsafe reason for compelling a man to take an imperfect title, contrary to the agreement. It must be remarked that here the defect is not such as will admit of compensation in damages.

Judgment affirmed.