Stephens v. Black ( 1875 )

Mr. Justice Gordon

delivered the opinion of the court,

This was an action of ejectment, brought to enforce the payment of purchase-money, alleged to be due upon articles of agreement between Black and Worley, the plaintiffs, and David Keys (under whom the defendants obtained possession), dated February 17th 1863. The plaintiffs exhibited the following brief of title, viz.: Deed from John Rogers to Hiram Rogers, May 3d 1855. Judgment, Elijah Chalfant v. Hiram Rogers. September 22d 1856; fi. fa. and vend, ex., in regular order, and a sale of the property to Black and Worley, to whom the sheriff executed a deed dated June 3d 1860; also, a deed from Hiram Rogers to Joseph Rogers, bearing date July 27th 1857. Deed, Joseph Rogers to Black and Worley, April 28th 1862. Articles of agreement, Black and Worley and David Keys, in which the plaintiffs agree to convey the land in controversy to Keys upon the payment of eight hundred dollars. Upon these articles, Martha Keys, wife of David, to whom, by a pai’ol agreement, the deed was to be made upon payment of the purchase-money, paid $355. David Keys, deceased, and bis wife retained the possession of the land until she transferred it, by agreement dated October 23d 1865, to Washington Stephens, the defendant.

Stephens produces, by way of defence, articles of agreement between Hiram Rogers and John Rogers, dated October 11th 1855, wherein Hiram agrees to sell the land to John for the sum of $110.

These articles were conveyed through Barzilla Stephens to the defendant. It will be observed that, primá; facie, this exhibits a defect in the plaintiff’s title. Eor, as this equitable title was outstanding in John Rogers, at the time of the entry of Chalfant’s judgment upon which Hiram’s interest in the land was sold, it is clear the sheriff’s vendees took only what Hiram held; that is, the legal title encumbered by the outstanding equity. Now the defendant, Stephens, having thus purchased this encumbrance on his vendor’s title, might have used it for the purpose of offsetting the amount he paid therefor against the purchase-money due them, just as he might have done had he paid a judgment or mortgage-lien upon the land; but he could use it for no other purpose. Instead of this, however, he sets up this equity, first, for the purpose of showing that the plaintiffs were not entitled to recover on •the Keys articles at all; secondly, for the purpose of offsetting the amount of the purchase-money mentioned in the articles between Hiram and John Rogers ($110) against the amount due the plaintiffs on the Keys articles. Both these propositions were properly rejected. Having obtained the possession of the land from the plaintiffs by the acknowledgment of their right through the Keys agreement, he cannot defeat this right by setting up an- adverse title in himself. Before he can be permitted to use such title against his vendors, he must turn out and restore to them their possession: 3 Casey 424. A vendee under articles of agreement may set up an outstanding title not in himself; for he is not compelled to accept from his vendor an imperfect title, neither can he be compelled to relinquish his possession until his vendor has made him whole as to purchase-money which he has paid, and improvements which he has put upon the property: Erwin v. Myers, 10 Wright 96; Gans v. Renshaw, 2 Barr 35. Such, however, is not the case where he cures the defect by buying in the outstanding title. In that case he becomes the trustee of his vendor, and after having received what he paid out to perfect the title, in which both are equally interested, he is entitled to nothing more.

The second proposition contains the solecism of the defendant’s undertaking to set-off that which, under any circumstances, belonged to the plaintiff. Leaving the Keys contract out of the question,- we have the plaintiffs, by virtue of the sheriff’s sale, representing Hiram Rogers in the articles with John. So the defendant represents John by virtue of the transfer of John’s interest in those articles to him, and as by that agreement John was to pay Hiram the sum of $110, we cannot comprehend upon what theory the defendant seeks to shift these positions and to claim this money for himself.

As we have before observed, what the defendant was entitled to was the amount he paid to raise the outstanding encumbrance on the plaintiff’s title. It might have been less or more than the amount of purchase-money named in the Rogers articles, but whatever it was he might have used it as a set-off to the plaintiff’s claim. As, however, he did not ask for this, and as there was no error in the court’s refusal of that for which he did ask, therefore, the judgment is affirmed.

Mr. Justice Mercur, dissented.