Donovan v. Driscoll

Mr. Justice Trunkey

delivered the opinion of the court, March 29th 1880,

Daniel Donovan, at the time of his death, was possessed of the land in dispute, holding under an article of agreement on which he had paid part of the purchase-money. He left a widow and nine children, the oldest under nineteen years and the youngest not born. The widow, with her unmarried children, remained on the land, five of them died between the years 1868 and 1872, and, when death and marriages had taken her children away, about five years ago she left and went to live with one of her daughters. By unremitting toil and prudence, she kept her large family of little ones together in their home, and paid the balance owing on the purchase-money of their land. It seems scarcely fitting that the last days of such a mother should be vexed with a lawsuit.

Since the widow left the place, she has contracted for its sale to Kane, one of the defendants; and were it not for that sale and claim of absolute title, this action would not lie : Gourley v. Kinley, 16 P. F. Smith 271. Adverse possession, with such claim, necessitates a settlement of the right before partition can be made in the Orphans’ Court: McMasters v. Carothers, 1 Barr 324. Were the right of the heirs not disputed proceedings for partition could have been had, and, in distribution, the amount of purchase-money due the widow could have been appropriated to her.

Williston, who contracted to sell the land to Daniel Donovan, afterwards conveyed the legal title to Ellen Donovan, she having notice of said contract. That conveyance vested in her precisely the same interest in the land which Williston had, and upon payment to her of the purchase-money owing by the heirs, she would be bound to convey in accord with Williston’s covenants. A purchaser from the vendor, who has sold by articles of agreement, stands in the vendor’s shoes, and is held to a specific performance of he agreement. The arrangement between Mrs. Donovan and Williston was fair and open, her title was recorded, and she was a trustee in the sense that Williston was — that of a vendor bound to convey when the money shall be paid, according to the covenants.

No question arises here under the 6th section of the Act of April 22d 1856 ; nor is there sufficient evidence to warrant submission to the jury to find whether the widow had acquired title under the Statute of Limitations. There is not a particle of testimony that she ever turned her children out of possession, or hindered them from entering on the premises, till within less than five years before the trial. Her possession was that of a widow, who remained in the homestead left by her husband, and managed the property and supported the children. Before the statute would begin to run there must be some plain, decisive and unequivocal act or conduct, amounting to an adverse and wrongful possession or disseisin : Hall v. Mathias, 4 W. & S. 331 ; Iddings v. Cairns, 2 Grant 88.

The court charged, “If t.he jury find that the defendant set up a claim to the land in her own right and to the exclusion of the heirs of Daniel Donovan, she is hot entitled to any portion of the purchase-money paid by her to Williston before suit brought. For, at most she held title as trustee for herself and children, and as such could claim the amount expended by her to secure the legal title, that is if she acknowledged the trusteeship ; but denying it, and claiming the property as her own, it is a fraud upon the heirs, and she forfeits the right to be repaid, as a condition to entitle the plaintiff to recover.” That was error. Mrs. Donovan has the rights of the vendor under the contract for sale, as well as the rights of a widow. Were the heirs of the vendee in possession she could maintain ejectment on her legal title, and it would be no fraud if she claimed to recover absolutely. To defeat such recovery they would set up their equity and entitle themselves to a conditional verdict. So, here the defendants claim to hold absolutely by virtue of the legal title, but the plaintiffs show an equity by which the heirs are entitled to recover on payment of the balance of the purchase-money. The claim to hold absolutely is no more a fraud when advanced by a defendant than a plaintiff. In either case it forfeits no right. It may be made in the utmost sincerity, though groundless.

As a general rule, tender of performance by a vendee on his part, should precede his suit for specific execution of the contract. In view of the circumstances of this case, we are of opinion that, although no tender was made, a conditional verdict and judgment may rightfully be rendered. Mrs. Donovan is not bound to convey till she receives her money due on the contract. That is a debt of the estate, and whenever partition shall be made, it will be paid out of the valuation or proceeds of sale, before distribution, to the party entitled. Hence, if the plaintiffs be required to pay the purchase-money to her, as a condition of recovery, it will be no hardship.

Judgment reversed, and a venire facias de novo awarded.

Mr. Justice Mercur dissented.