Appeal of Ruff , 117 Pa. 310 ( 1887 )

Opinion,

Mr. Justice Williams:

The contract, the specific execution of which is sought by this bill, was made on the 6th February, 1872. It provided for the sale by Puff to J. L. Dillinger of the one tenth part of about one thousand acres of land and coal privileges of which Ruff was part owner, in Derry township and the valley of the Big Sewicldey in Westmoreland county, for ten thousand dollars. Of the purchase money, one half was to be paid in notes at ninety days and four months, “ and the balance in two equal annual payments from the first day of March, 1872.” The notes for the first payment were given and have been paid. The other payments have not been made, but Dillinger neglected and declined to make them, alleging in substance that there was not enough of value in the purchase to justify it. Four years after the last payment fell due, Dillinger became a bankrupt and in 1880 obtained an absolute discharge from all debts which he owed on the 17th April, 1878, which included the one half of the purchase money due on tins contract and the interest thereon. The assignee in bankruptcy some four years after his appointment filed this bill, asking specific execution of the contract of 1872 in accordance with his version of it. The defendant below sought to avail himself of the protection provided by the act of congress of 2d March, 1867, which declares that “no suit at law or in equity shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.”

The court was of opinion that the defendant was not entitled to the benefit of this act without setting it up specially in his answer as a bar to the plaintiff’s action. The defendant then asked leave to amend his answer by incorporating into it a paragraph for this purpose, but leave was not granted. In this the court erred. The act of congress is a proper and adequate reply to the plaintiff’s bill, and unless he can relieve himself from its operations by showing snch circumstances as will prevent its application to him, it is a conclusive one. This we understand to be the rule as laid down in the cases cited.

But we are not disposed to put our disposition of this case upon the act of congress alone. After a careful examination of the contract, the report of the master and the evidence, we are satisfied that the case presented is not one that entitles the plaintiff to the intervention of a chancellor. The contract is for an undivided one tenth part of “lands and coal privileges,” of which Ruff was part owner, situated in Derry township and the valley of the Big Sewickley, and amounting to one thousand acres. It describes no particular tract or -coal privilege. The plaintiff has endeavored to show that a tract called the Bennett tract was one of those in the contemplation of the parties, but the fair balance of the testimony is against him on this question. For eight years after the last payment fell due, the vendee neither performed on his part nor asked performance. One half of the purchase money according to the plain terms of the contract is yet unpaid, except as it has been paid by the plaintiff’s discharge as a bankrupt. Meantime the whole situation has greatly changed. A railroad has been built which brings these lands within reach of the market and greatly enhances their value. Coal has been opened on some of them. Some of them have been-sold. The plaintiff having laid by for years, while these things have been going on, now asks to have the benefit of a contract which he declined to perform for years after it was made. These are not the circumstances, nor is this the conduct on the part of a purchaser that .is calculated to move the conscience of a chancellor. The plaintiff below should be left to his remedies at law.

And now, October 7, 1887, the decree of the Court of Common Pleas of Westmoreland county, directing specific execution of the contract set out in the plaintiff’s bill and the payment of nine thousand and fifty-seven dollars and eleven cents, with interest thereon and costs, is reversed, and the plaintiff’s bill is dismissed at costs of appellee.