Devling v. Little , 26 Pa. 502 ( 1856 )

Knox, J.

The alleged errors will be noticed in the order in which they are assigned.

1st. The plaintiffs in error cannot complain that the court ordered certain releases to be filed of record. In no possible event can this order affect injuriously the plaintiffs in error’s case.

2d and 3d. It is said in the argument that it needs but a glance at the depositions of D. B. Taylor and Judge Parsons to see their inadmissibility. We have examined them carefully, and are well satisfied with their admission. The testimony contained in those depositions, so far as it was received by the court, is not liable to the objection made against it, that it related to conversations and statements to which the defendants were strangers. It was competent for the plaintiff to show his own acts in carrying out the agreement in reference to the releases; and what was said by him and others whilst procuring the releases, was proper evidence to illustrate what was done. A declaration accompanying an act is often so intimately connected with the thing done that the one must necessarily be received to explain the other. And such was the character of the declarations contained in the depositions referred to.

The remaining assignments are to the charge of the court, and will be considered together. And here, a brief statement of the case is required. .

Moses P. Little, the plaintiff below, purchased, by articles of agreement, of D. B. Taylor and others, several tracts of timber land, lying in the county of Clinton. On the 17th day of August, 1854, he contracted, by writing, to sell to the defendants a part of the land, which he had so purchased, for the sum of eighteen thousand one hundred and fifty dollars, eight thousand dollars to be paid on the first day of October then next, when a deed in fee simple, clear of all encumbrances, was to be made to the vendees; five> thousand and seventy-five dollars to be paid on the first day of April, 1855, and five thousand and seventy-five dollars on the first day of December, 1855. The two last payments to be secured by bond and mortgage, to be executed simultaneously with the deed.

After this agreement was made, and before the first payment became due, Little received a deed from Taylor and others for the land purchased, and gave two mortgages for the unpaid purchase-money, amounting in all to the sum of $15740. There were also judgments against Little in Clinton county, which were unpaid, for about three thousand dollars. A few days before the first payment became due on the contract in suit, the parties met in Lockhaven, and the purchasers, learning that the land was encumbered by the mortgages and judgments above mentioned, refused to make the payment until the liens were removed. According to the testimony of Mr. Mackey, at whose office the meeting took place, it was finally agreed that the parties should meet in Philadelphia on the 29th September, when a certain sum of money was to be paid directly to Mr. Taylor, who had offered to release the mortgage liens upon receiving it, and one of the bonds of five thousand and seventy-five dollars was to be deposited with Mr. Mackey as security for the payment of the judgments.

Mr. Little went to Philadelphia before the 29th of September, procured releases to be executed ready for delivery upon payment of the money as agreed upon; but the defendants did not meet him there in accordance with the agreement. Subsequently, on the 12th of December, 1854, this suit was brought to recover the instalment due upon the 1st October of that year.

The cause was tried on the 12th September, 1855. Upon the trial it appeared that the judgments had been satisfied since the suit was commenced. The releases for the mortgages, which were in the hands of Mr. Mackey, were, by the order of the court, deposited with the prothonotary.

The defence was: First, that the action was prematurely brought before a conveyance was tendered by the plaintiff. Second, that • at the time suit was brought, the plaintiff was not entitled to call for specific performance, and therefore could not recover. Third, that the releases produced upon the trial and filed were not sufficient to release the lien of the mortgages.

The learned Judge of the Common Pleas instructed the jury that if they believed the testimony of Mr. Mackey, it amounted in. law to a waiver of the conditions in the agreement, and if they neglected to comply with their stipulation to pay the money to Mr. Taylor, in Philadelphia, the plaintiff was entitled to recover. The jury found for the plaintiff the amount of the first instalment and its interest. It is this instruction that is complained of in the assignments now under consideration.

It is possible that the Court of Common Pleas were not strictly correct in making the case turn entirely upon the testimony of Mr. Mackey. But if upon that testimony, the truth of which has been found by the jury, and other admitted facts in the cause, the defence has no validity, the judgment must be affirmed. Let us examine the several grounds of defence.

First, a3 to the necessity of tendering a conveyance before suit brought.

The deed from Little and wife to Hugh Devling and others for the land contracted for, was duly executed on the 14th September, 1854, and placed in the hands of Mr. Mackey, and by him retained up to the time of trial, when it was deposited with the prothonotary. by order of the court! Mr. Mackey testified that the deed was drawn by him at the instance of all the parties, and left with him by Mr. Little, to be delivered to Devling & Co. upon the payment of the instalment due 1st October, and giving the securities mentioned in the contract for the remainder of the purchase-money. This deed was before the parties at Mr. Mackey’s office, when the agreement was made that the money should be paid, and the releases obtained from Mr. Taylor, in Philadelphia. It was understood that the deed was ready to be delivered when the vendees were entitled to receive it, and as the jury have found that they have never complied or offered to comply with their agreement to pay the money, and give the securities upon the release of the mortgage liens, a formal tender of the conveyance before suit brought was unnecessary.

Second, “That at'the time suit was brought plaintiff was not entitled to call for specific performance.”

. When the action was commenced the'plaintiff’s legal title was encumbered by the two mortgages, and by the lien of several judgments, and had the defendants stood upon their written agreement solely these encumbrances must Lave been removed before the purchase-money, or any part of it, could have been legally demanded. But the plaintiff and the defendants agreed that so much of the first instalment as was necessary should be paid to the mortgagees, upon the residue of the mortgage liens being released, and that one of the unpaid bonds should remain with Mr. Mackey until the judgments were paid and satisfied, and in pursuance of this agreement the plaintiffs actually procured the releases to be executed, ready for delivery upon payment of the money as agreed upon. Now equity will not permit the defendants to refuse to perform this agreement, and fall back upon their legal right to demand a conveyance free from encumbrance, when it is apparent that their neglect to pay the money is the sole reason why the land has not been discharged from the mortgage liens. But, thirdly, it is said that the releases executed by the mortgagees, or filed in court, are not sufficient to discharge the liens of the mortgagees, because one of them was signed by an attorney in fact for one of the executors of Hugh Birkhead, deceased, without producing the power of attorney, and the other by Mr. Taylor, as assignee of S. B. H. Vance, without showing the deed of assignment. It is also argued that these releases are not binding upon the mortgagees, but that they can be withdrawn at any time before the money is actually paid, and the releases delivered.

Neither of these objections to the validity of the releases is of any validity.

The release of the Birkhead mortgage is signed by four of the executors of the estate personally, and by one as the attorney in fact of the fifth. This release is unquestionably good, whether the power of attorney has any existence or not.

The release signed by Taylor and others recites a mortgage given to Taylor, Bunting, Cadwallader, Sellers, Benjamin F. Taylor, and S. B. H. Vance, and it also recites that Vance has assigned his interest in the mortgage to David B. Taylor. The release is signed by all the mortgagees except Vance, and upon its face purports to release his interest by his assignee.' No objection was made to the release when offered. Had there been, the assignment would doubtless have been read from the records of Clinton county. It is too late to make the objection now. Neither can we permit the plaintiff in error to allege that the mortgagees may possibly withdraw the' release without a particle of evidence, that any such intention on their part exists, or ever has existed, and when it is clear that the releases have been ready for delivery for nearly two years, and are now under the control of the court where the suit was brought. Upon the whole case we are of opinion that there is no error in the record which requires a reversal of the judgment. That upon payment of the judgment and delivery of the bond and mortgages, the defendants will be entitled to the deed and releases now deposited with the prothonotary, which will give to them all they contracted for, viz., a title in fee simple, clear of all encumbrances, created by the defendant in error.

Judgment affirmed.