Wheeling, Pittsburgh & Baltimore R. R. v. Gourley , 99 Pa. 171 ( 1881 )

Mr. Justice Gordon

delivered the opinion of the court, November 25th 1881.

We cannot agree with the court below in its construction of the contract of September 28th 1860, between Johu Marshall, the devisor of Mrs. Gourley, and the liempfield liailroad Company. The learned judge thought the printed parts of this instrument were inconsistent with, or repugnant to, the written parts thereof, and, therefore, in accordance with the rule laid down in Parsons on Contracts, and other authorities, adopted the latter to the exclusion of the former.

We have no fault to find with the rule to which reference is made, but we think it has no application to the case in hand. We can discover neither conflict nor repugnance in or among the different parts of this contract. It is indeed true that the main object of the company was to obtain the right of way for its railroad through Marshall’s premises, and it is so expressed in the agreement; but how this can be inconsistent with a grant of the fee of the land over which that way was to pass, we cannot understand. “In consideration,” reads the agreement, “of four hundred and fifty dollars, payable as hereinafter stated with interest, in full for right of way and all claims for damages, the said party of the first part agrees and binds himself to convey, to the said party of the second part, by a good and sufficient deed in fee simple, with covenant of general warranty, the following property;” and then follows a description of the land intended to he conveyed. Then, in order, comes this conclusion : “ Upon the delivery of said deed, duly acknowledged for record, at any time after the expiration of five years after this date, the said liempfield liailroad Company agrees to pay to the said party of the first part, the said sum of four hundred and fifty dollars with interest from date.” If this is not a specific agreement to convey in fee, we know not how such an instrument could be framed. Neither can we discover in its words, written or printed, the slightest ambiguity. The veiy easy and simple explanation of the contract is this: the railroad company wanted a right of way through Marshall’s property, and in order to secure that right beyond all peradventure, it bargained with him for the fee of the land over which it was to to pass, and so, in turn, Marshall agreed to convey, and that the use to which the company intended to put the land was set out in the contract does not in the least obscure its terms. But on February 3d 1866, Marshall deeded the land in controversy to A. J. Stillwagon, reserving only the right “to convey .the right of way through said land to the said Hempfield Bailroad Company at any time the said company may pay the said grantor the damage heretofore agreed upon.” But by this act Marshall deprived himself of the power of fulfilling his contract with Jhe company, for what he thus reserved was not sufficient to meet his agreement. This fact is, of itself, fatal to the plaintiffs’ case, for they ask the specific execution of a contract with the terms of which they, on part of the vendor, are unable to comply. But under a condition of things such as this, they cannot compel the vendee to the alternative of paying or turning out until they have tendered full compensation for the improvements which it has put upon the premises: Creigh v. Shatto, 9 W. & S. 82; Richardson v. Kuhn, 6 Watts 299.

But, beyond this, how can the plaintiffs maintain an equitable action of ejectment to enforce the payment of this purchase money, when the legal title is not in them ? or, for that matter, how maintain ejectment of any kind when they have ' neither title, possession, nor right of possession ? The theory on which our equitable ejectment is founded is, that the vendor may thus use his legal title to enforce payment of the purchase money due him as long as he retains a lien upon that title, but when he parts with it or loses his lien, he can no longer resort to this action. He may even hold the legal title and yet not be able to use it to enforce payment. As in Brown v. Metz, 5 Watts 164, where the covenant by the vendor was to convey upon the payment of a certain portion of the .purchase money, and, that portion being paid, it was held that he could not enforce the residue by ejectment. So, Thompson v. Adams, 5 P. F. Smith 479, is an example in point of the inability of a vendor to enforce payment by ejectment where the legal title has passed out of him, though he may still be entitled to the purchase money.

Again, let us suppose the defendant is compelled to turn out and abandon tbe land now occupied by it; cui bono ? — the plaintiffs gain nothing ; they clear the land of Stillwagon, the owner of the fee, of an incumbrance which otherwise it would be obliged to support, but leave themselves empty-handed. It follows, that the position of the plaintiffs, from any and every standpoint from which it can be viewed, is untenable.

The judgment is reversed.