Roddy v. Harah , 1869 Pa. LEXIS 225 ( 1869 )

The opinion of the court was delivered,

by Agnew, J.

The court below erred in holding that there could be no conditional verdict, because separate ejectments were brought for the two tracts contained in the contract of purchase. It was rather a singular impression that payment of the whole purchase-money under a conditional verdict in one ejectment would not be payment of the same money in the second, under an entire contract for both tracts. And it was also strange that in an ejectment for one tract the deed required to be made by the plaintiff under the contract for both, must necessarily be confined to the one described in the particular ejectment. The ejectment being founded on the legal title of the plaintiff, and his titles being several, there was nothing to prevent his bringing several ejectments. It is the defendant who opposes the equity of the contract to the recovery, and this he does in each case. But when he has done this, what is there to .prevent the court from moulding the verdict to administer the equity of the whole contract for both the tracts? That would be by requiring the defendant to pay the purchase-money according to its terms, and requiring the plaintiff to make and file a deed or deeds for both tracts, as he is bound to do by its terms; and then by so describing the contract as to identify it, and to show that it embraced the lands in both the ejectments. A compliance with the condition would thus be effectual in each action. The only difference would be, that in the trial of the second action it would become necessary to give the first in evidence in order to enable the court to mould the verdict so as to adapt it to the verdict found in the first. Clearly, one deed and one payment of the purchase-money would perform the contract in both actions.

There is nothing in the remaining assignments of error to need special notice. The fact that the mortgage in favor of the defendant on the Philippi tract was not a personal charge against the plaintiff, would not prevent the defendant from using the mortgage to pay off so much of the purchase-money charged against the Philippi tract, the plaintiff having agreed to sell it as well as the Cupp or Weimer tract by the same contract. The land was encumbered by the mortgage, which must be removed before the plaintiff himself could comply with his contract.

Judgment reversed, and a venire facias de novo awarded.