Southerland v. Purry , 2 Pen. & W. 145 ( 1830 )

The opinion of the Court was delivered by

Smith, J.

The errors assigned, are to the charge of the Court:—

1. That the Court erred in instructing the jury, that Souther-land was bound to execute a deed and tender it to Purry, before he eould bring suit.

We cannot see error in this instruction of the Court. South-erland settled on the land in controversjr in 1796, and sold it to Purry on the 14th of June, 1799, bjr an article of agreement, for two dollars per acre ; — fifty eight pounds, fifteen shillings, were to be paid in hand, and the residue of the purchase- money as soon as Southerland would deliver Purry a deed, or give him good security for the delivery of such deed. It would appear, that when the ejectment was instituted, it was intended to recover on, the original settlement, but when the defendant produced his ar-■tide of agreement, the plaintiff abandoned his original ground, and considered his suit an equitable ejectment, brought to compel the payment of the purchase money ; but the Court decided, that •the plaintiff could not recover unless he made a deed to the defendant. In this the Court were certainly right, for all this was .required to be done by the plaintiff by his article of agreement, •and although there was an alternative, to deliver a deed to Purry, .or give him security for such delivery, it is not pretended that the pláintiff performed either: he couid not recover, unless he had performed the one or the other of the alternatives. There was then no error in this instruction te the jury-

2. It is said the Court erred, in charging the jury, that after Purry had taken out the title himself from the land office, South- ■ erland was bound to tender a.deed of confirmation, or a release before he could bring this suit.

We do not see any error in this instruction. The bringing of •this very ejectment shows that the plaintiff lays claim to the land ; and does so although the defendant has the legal title for it, and why does not the plaintiff release this claim, before he calls on the defendant, and claims from him the purchase money ; by his article he has undertaken to make a good and clear deed without incumbrance; but this he has not done, and therefore cannot sustain this suit. It is the common case of a man, who buys a tract of land, but who is not to pay until a deed is made to him for it, clear of all incumbrances. If the vendor does not do this, and the vendee discharges or pays off the incumbrances, still there is, in law and justice, a conveyance due, by their contract from the vendor to the vendee, and until this is made to him by the vendor, the vendee is not bound to pay the purchase-money: for such is the very contract of the parties ; and as made by them, so it must be performed.

Besides, it would appear, the first payment was actually made to Southerland, at the. date of the article: no more was to be paid until a clear deed was made for the land, or security given for a deed of this description ; this I stated before was not .done, ■but a considerable sum was paid, by the defendant, (if not directly to the plaintiff, to the Commonwealth,) to obtain a patent for the land. The law then, as laid down by the Court of Common Pleas, was, in our opinion correct-.; and there is no error in this ¡part of their charge.

-Judgment affirmed.