Estate of Blair

Opinion by

Mr. Justice McCollum,

The offer of August 18, 1887, was accepted by the Furnace Company the next day at its office in Philadelphia. Formal notice of the acceptance was not given to Gen. Blair, or to any one representing him, but the company promptly took possession of the land described in the offer, and made valuable improvements thereon. It has had possession of the land upwards of nine years, and during that time has taken from it ore and timber sufficient at least to pay the purchase money, but it has not complied with any of the terms of the offer it accepted and under which the possession was obtained. Gen. Blair died in December, 1888, and his only son and heir, Frank P. Blair, became administrator of his estate. Failing to obtain a settlement with the company he brought an action of ejectment against it in April, 1889, in which he secured a verdict for the land on the 5th of May, 1891. The court ordered a suspension of judgment on the verdict pending proceedings in the orphans’ court for specific performance of the contract founded upon the offer and acceptance above mentioned, and that the company commence such proceedings within sixty days and prosecute them to final hearing within six months unless the time was enlarged for cause shown. This order was made on the day the verdict was rendered, but the company ignored it and did not file a petition for specific performance until the 28th of August, 1893, more than twenty-five months after the time allowed for filing it had expired. The answer to the petition was filed on the 2d of October, 1893, and on the 27th of November, 1893, Clement Dale, Esq., was appointed examiner and master to take testimony “ report the facts to the court and suggest decree,” etc. From the testimony taken on the hearing before him the learned master found that the land which Gen. Blair pointed out and proposed to sell to the company was correctly described in the offer, and that he was prepared to make-a deed for the same to the purchaser. He also found that Frank P. Blair was able to carry out the contract the company made with his father. The findings we have referred to were against the contention of the company respecting the matters included in them. They were approved by the court and their accuracy is no longer questioned. The master filed •his report on the 6th of December, 1894, and it recommended a decree requiring Frank P. Blair within thirty days from the filing thereof to make, execute and deliver to the company, a deed for the land; and requiring the company, within ten days from the receipt of notice that the deed was prepared and ready for 'delivery, to pay the purchase money without interest. Exceptions were filed to the report, and the learned judge who heard argument upon and dismissed them entered on the 5th of January, 1895, what he called “ a preliminary decree.” It contained all the provisions of the decree recommended by the master, and added to them the further provision that if it should be impossible for the estate of Gen. Blair (by reason of inability to obtain title) to make the deed within the time designated in the first section of the decree, the case should be referred back to the master to ascertain the exact quantity of land Gen. Blair had title to “ at the date of contract and at the time of his death,” and “ the due proportion of the purchase money, without interest, which should be paid for such part.” An appeal was taken from the decree to tins court where it was quashed on the ground that it was premature.

The deed was not filed within the time designated in the “ preliminary decree,’.’ but it was executed on the 13th of November, 1895, presented to and “identified” by the master on tbe 28d and filed on the 30th of the same month. The only objection made to the deed was that it was not filed within the time fixed by the decree, and, because it was not filed within that time, the learned master and the learned judge who passed upon the exceptions to his supplemental report concluded that the final- decree for specific performance must be limited to such part of the land included in the offer of August 18, 1887, as Gen. Blair had title to, at the date of said offer, “ and at the time of his death.” The former found that he had title to sixty acres, and the latter found that he had title to one hundred and two acres and ninety perches. A decree was accordingly entered March 27, 1896, requiring Frank P. Blair, admr. etc. to convey said one hundred and two acres and ninety perches of said land to the furnace company, and the furnace company to pay therefor #1,974, that being the proportion of purchase money applicable to it. The case is now before us on appeal from this decree.

The learned judge who entered the “ preliminary decree ” did not have sufficient opportunity to consider the case. His consciousness of the want of it appeared in his opinion. He heard the argument on exceptions to the master’s report on Friday and entered the decree the next day, that being the last secular day of his official term. His successor in office having had charge of the case for the company could make no order in it, and it therefore became necessary to summon a judge from another district to hear and finally dispose of it. This was noj; done until November, 1895. The appeal from the “preliminary decree ” was quashed in April, and the record returned in June of that year. These circumstances furnished sufficient ground for extending the time for filing the deed. The mere pendency of a motion or rule for a new trial in the ejectment case was deemed sufficient to justify the court in allowing the furnace company an additional sixty days in which to file its petition for specific performance. This extension was granted twenty-five months after the time allowed for filing it by the order of May 5, 1891 had expired, and the petition when presented showed upon its face that it was prepared, signed and sworn to by the superintendent of the company on the 1.2th of June, 1891. It is apparent that great injustice will be done to the appellant by a strict enforcement of the provision in the, “ preliminary decree ” in regard, to the time allowed for filing the deed, and no equitable considerations appear to support or. demand it. We think, therefore, that under the circumstances and having regard to the equities of the case, the learned judge who entered the final decree should have allowed the deed of November 13, 1895, the effect it would have been entitled to if it had been filed within the time named in the preliminary, decree. This was within the equity powers of the court and a, proper case was presented for the exercise- of them.

The learned master in his first report recommended specific performance and payment of purchase money without interest. The learned judge who entered the first decree adopted the recommendation of the master and added to the decree the stipulation we have already considered. The former did.not. state why he refused to allow interest on the purchase money,! but the latter put his refusal to allow it on the ground that the. company had shown a readiness to perform and pay in 1887,. and that Gen. Blair was entitled under the contract to an undivided one half interest in the iron ore, surface, timber, etc., remaining unsold after the company had realized a certain sum in the manner stated therein. For these reasons he thought it would be unjust to require the company to pay interest. We cannot see how the provision in the contract in regard to the; interest of Gen. Blair in certain iron ore, timber, etc. affects his right to interest on the purchase money, nor can we discover in the action of the company in respect to performance anything which ought in equity to relieve it from the payment of the same. The purchase money was due October 17, 1887, but no payment or legal tender of it was ever made. It is true that Thos. Collins, one of the company’s stockholders, testified that he told Blair he was prepared to pay it, and that the company wanted to close the deal so it could include the land in a mortgage it proposed to issue on its property. It appears that the mortgage referred to was for $100,000, and that Gen. Blair objected to the inclusion of the land in it because it might interfere with the enjoyment of his residuary interest, but he did not refuse to make a deed in accordance with the contract. He tendered a deed in the spring of 1888, which the company declined to accept because the description was not sufficiently specific and it contained a covenant which might lead to complications. It is proper to state in this connection that the company alleged in its petition for specific performance, as further reason for refusing to accept the deed, that it did not include all the land which Gen. Blair pointed out as within the boundaries mentioned in his offer of August 18, 1887. This is important a& showing by the company’s own confession that it was not ready and willing in the spring of 1888 to accept performance of the contract as written, or to pay for the land described in it the purchase money called for by it. While the company petitioned for specific performance, it did so under an order of court, and reluctantly, and then sought to modify the contract so as to reduce its liability upon it.

We have carefully examined and considered the evidence in the case and the claims of the parties, and our conclusion is that a decree should be entered requiring Frank P. Blair, admr. etc., to file in the orphans’ court a good and sufficient deed (if he has not already filed it there) conveying to the furnace company its successors and assigns, in fee simple, the land described in the contract, and the furnace company to pay into said court the sum of $5,200, together with interest thereon from October 17,1887; the deed to be delivered to the furnace company and the money to be paid to Frank P. Blair, admr. etc., only upon the order of said court and after the incumbrances upon the premises conveyed have been removed. The deed to be made subject to the rights reserved to Blair, his heirs, etc., in the offer of August 18, 1887. We think also that as neither party was exclusively responsible for the delays in the adjustment of their differences the costs should be equally divided between them. To the extent that this opinion is in conflict with the rulings of the court below, the specifications are sustained.

Decree reversed and record remitted, with direction to enter a decree in accordance with this opinion. The costs of the appeal to be equally divided between the parties.