Goodwin v. Nelin , 35 How. Pr. 402 ( 1867 )

Davies, Ch. J.

These exceptions present the only question for the consideration of this court. Upon the facts found by the court, it is very clear that the plaintiff had no standing in court to impeach the title of the defendant, Mary Nelin, to the lot in question. He certainly had no greater rights than were possessed by his grantor, the administratrix of Francis Hunt. If it be true, as found by the court, that the contract, by its terms, had terminated, and Bristol had the right to declare it forfeited and terminated, as it is found he did, and proceeded to enforce his. rights upon that basis, and did recover the possession of said premises, it is not seen why he had not a perfect right to sell the said premises to whomsoever he pleased, and why the defendant could not purchase the same and acquire a perfect title thereto. Upon these facts, no title or interest remained in the estate of Francis Hunt, at the time of the initiation of the proceed ings in the surrogate’s court, to sell his real estate or his interest in the said -contract of purchase. By the terms of the contract, that interest bad terminated on the 20th day of September, 1852; and on that day Bristol, by the act of commencement of the action of ejectment, elected so to regard it, and on the 30th day of October succeeding obtained judgment in said action,, and was therefore entitled to the possession of said premises. It is not pretended that said recovery was fraudulent or collusive.

On the 15th of June, 1853, Bristol, then the owner of said premises, sold and conveyed the same to the defendant, Mary Helin, for a valuable consideration; and this action is on the notice of an ejectment to recover such possession. It cannot be maintained, for the very obvious reason that the plaintiff has shown no title to the premises claimed. He cannot recover upon the weakness of the defendant’s title, but upon the strength of his own. The title of the plaintiff was acquired more than a year after the defendant had received a deed .for the premises in dispute from the conceded true owner thereof, and.,when she was in possession of said premises and holding the same adversely to any title the plaintiff had or could have from the representatives of Francis Hunt. If he had survived, he could not have set up any title to said •premises until he had performed, or offered to perform, said contract on his part. This neither the plaintiff nor those from whom he derived title had ever done. If they had any right, or had acquired any under such contract, it could not be asserted or enforced, unless it was made to appear that they, or those under whom they claim, had performed the same, or had offered to perform on their part. They were clearly not entitled to a deed from Bristol until this was done. And as the court had found as a fact that the money due upon this contract was never paid to Bristol' or tendered to him or any one else, it is very apparent that the plaintiff, dr those under whom he claims, never had or were entitled to have a title to said premises.

If we assume that the defendant succeeded to all the duties and responsibilities imposed by the contract upon Bristol, and that the plaintiff has possessed himself of all the rights of Hunt under the contract, how then stands the plaintiff's right to maintain this action? It cannot be contended, as has been already observed, that he has any greater or other rights under the contract than Hunt would have had, if living. Before he or his assignor could have obtained title to the premises in question, by virtue of this contract, it was a prerequisite on his part that there should have been performance by him, or an offer to perform, and payment of the amount due, or 'tender of such payment. Hone of these things were done; and the court has found the fact that the moneys due upon the contract were never paid or tendered to Bristol, or to any one else. This latter branch of the finding is sufficiently comprehensive to include the defendant. We thus see that the plaintiff, and those under whom he claims, never had the title to said premises,, and never were entitled, either legally or equitably, to such title. It follows, from these views, that the court properly dismissed the complaint and gave judgment for the defendant, and that the exception to such decision is untenable. It is unnecessary, in this aspect of the case, to consider the exception taken to the admission and rejection of the testimony offered. The exclusion of that offered, and the admission of that objected to, would not have improved the plaintiff's case, and therefore these rulings worked no injury to him. Without intimating any doubt as to the correctness of the rulings made, it is only needful to add that the decision of the case does not call for any expression of opinion in regard to them. •

The judgment .appealed from should be affirmed, with costs.

All concur.

Affirmed.