Foster v. Harris

Coulter, J.

The doctrine of conversion is favoured rather than restrained by modern decisions, because it carries into effect, the intent and the contract of the parties, and disencumbers real estate from some of the useless clogs imposed upon 'its alienation by,the strict rules of the common law: and it is a result and consequence of the pervading principle in chancery, that what a party has contracted to do, equity will consider as done. William McOlay having sold a certain part of his real estate in his lifetime, by articles of agreement under seal, the land so contracted to be sold ceased to be real estate in his hands, although he had not parted with the legal estate. He became tho trustee of that estate for the use of the vendee, and the lands were transmissible by the vendee, by contract, will, or deed. The vendor was entitled to recover the purchase-money, and was bound 'to make a deed; and in the event of his death before deed made, his executors or administrators were entitled to recover the purchase-money, and were bound to execute a deed, according to the mode and manner prescribed by the act of Assembly, in such cases provided. The purchase-money for the lands sold by McClay in his lifetime, went into the hands of his administrators after his death. Foster, when he purchased from Mrs. Awl, one of the sisters of McOlay, her share of the lands which descended to her from William McClay and John McOlay, did not buy the lots or parcels of lands which William McClay had sold in his lifetime, nor did Foster, by his purchase from Mrs. Awl and her husband, become entitled to any interest in, or part of the purchase-money of those lots, which were personal estate, and went into the hands of McClay’s executor,, for the purpose of paying his debts. The legal 'estate being held by William McClay in his life, as trustee of the vendee, it would descend to his heir, subject to the same trust. And when the vendee paid the p.urchase-money, he was entitled to the legal estate, and the law afforded him ample means of obtaining it, which, in due time, was procured. Foster, therefore, by virtue of his pur-* chase of her share from Mrs. Awl and her husband, had neither part nor interest in the lot sold by McClay in his lifetime, or their product: nor ought he to have any, for he paid no value for them. [His honour here stated the facts connected with the bonds in suit.]

Foster became one of the administrators de bonis non of William McClay, deceased, in December, 1819, and the final settlement of the administration account was not made until 1838. The delay was, in a great measure, perhaps altogether, attributable to Foster himself, who, if he had chosen to do so, could have made the assets available at a much earlier period. It appears that he became the owner of the island opposite Harrisburg, which he allowed to be sold by the sheriff. But the bonds were due in 1821,1822, and 1823, They were debitum in presentí solvendum in futuro. The contingency in the future depended upon and was within the control of the debtor, who allowed interest to accumulate against the estate, but asks to be excused from the payment of interest himself.

He had in his hands tho quid pro quo, the lands, for -which these bonds were the redditum, and enjoys their great accretion in value. Why, then, should he not pay the woman, or her representatives, interest, as well as the principal, upon the happening of the contingency which made them presently payable ? which contingency he might have accelerated, as administrator, to a period much earlier than that to which he allowed the matter to be protracted.

The court having distinctly and unequivocally submitted the question of fact to the jury, as to the occurrence of the contingency which would free Foster from the payment of any part of the principal of these bonds, and the jury having found that he was not compelled to pay more than $12,000 of McClay’s debt out of the land in Dauphin county; or, in the other and more distinct aspect in which the matter is put in the article of agreement, that he was not compelled to pay more than $2,000 out of the share that Mrs. Awl and her husband sold to Foster, the contingency never occurred which was to entitle him to any credit on the bonds, and he was bound to pay interest on them from the time they fell due respectively, in 1821, 1822, and 1823. The mere susjoension of payment to the occurrence of an event almost altogether within the control of Foster, to wit, the settlement of his administration account, did not suspend, or rather obliterate the interest. The law entitles the representatives of the woman, who is now dead, to recover the interest, as well as the principal.

Judgment affirmed.