Espy v. Anderson

The opinion of the court was delivered, by Coulter, J.

— The defendant below offered to prove that, after making the article of agreement given in evidence by the plaintiff, and before the defendant took possession, a parol agreement was made between the parties to rescind it, and that Anderson then admitted that he could not make title, to be followed by proof that, after the recision, another parol agreement was made between the parties, under which Espy took possession. The court below rejected this evidence, which is assigned for the first error. In equity, a written agreement may be rescinded by parol; a court of chancery will oftentimes refuse to decree a specific performance of an agreement, which, nevertheless, it will not declare rescinded; and a specific performance will be decreed upon the application of one party, when the court would refuse to act upon the application of the other. The intervention of the court can only be successfully invoked by the special circumstances of the whole case, from which the preponderating justice, on the one side or the other, is established. The action, therefore, of a court of chancery, as to such matters, is essentially dependent on discretion; not of a capricious discretion, but of sound judicial volition, according to the principles of equity. But in order to rescind a contract, under such circumstances, both parties must place themselves in the same situation that they occupied before the contract was made, so that neither can have or take advantage of the other: and that was not offered to be proved in this case. The agreement was not cancelled or delivered up; the fifty-five dollars paid on the 11th of December, 1847, was not refunded, nor was it proposed to show that any act was done in pursuance of the alleged rescisión. It was then a mere naked or voluntary agreement, unexecuted, and without consideration, and, therefore, not regarded in equity as of any moment whatever. But the agreement was not considered rescinded by either party, as was fully manifested by the subsequent evidence in the cause; and, therefore, as the rejection of the proposed evidence *311 could have been no real detriment to tbe defendant below, tbe court would not reverse on that account. David S. Deering,. a witness who was called by the defendant, testified that Espy, the defendant below, brought the deed tendered to him by Anderson, .and wished to know whether it conformed to his article of agreement. He instructed him that it did not. He further testified that the same deed was tendered at May court following, and the same objection was made, that it did not conform to the article of agreement. George W. Zeigler testified the same thing. He was the partner of Deering, and they were the attorneys under whose advice Espy acted. It is apparent, therefore, that both parties considered the articles in their original vigor. But the subsequent part of the offer shows plainly enough the category into which the defendant wished to bring his case; that is, he wished to establish that the written agreement was varied or altered by a parol agreement, without specifying in his offer what that alteration was. But that is not material, for a written agreement respecting the sale of land cannot be altered by parol testimony. If it could, the statute of frauds and perjuries would be of no practical use, nor answer any beneficial purpose. What was said and done by the parties, at or about the time the written agreement was entered into, may be given in evidence, in explanation, or to correct a mistake of the scrivener; but a subsequent parol agreement cannot be received in evidence to alter the terms of a written agreement for the sale of land. The evidence was properly rejected.

The second error assigned is not sustained.' The testimony was direct and positive, that the only judgment remaining open on the docket was actually paid. This was quite sufficient, for it put the defendant into the knowledge and possession of evidence by which he might compel the plaintiff to enter satisfaction; and if that was not sufficient security for him, he might have retained so much of the purchase money as would have discharged it, until Anderson had procured satisfaction to' be entered; or he might have tendered to the plaintiff in the judgment, the amount, and retained it out of the purchase money, if it had not been paid.' But this error assigned is only a make-weight, for the entry on the docket is, all costs paid, and $9 of the debt: and the plaintiff in the judgment, Heath, testified that this $9 was the balance of the judgment due at the time the entry was made, which was before the tender of the deed, the rest having been paid at a previous time. But if there had been encumbrances, all that the plaintiff was bound to do was to satisfy the jury that he was able to discharge them, if the defendant had been willing to accept a deed: Hampton v. Specknagle, 9 Ser. & R. 212, and Cassel v. Cooke, 8 id. 268.

In relation to the third error assigned, I have to observe that it is not necessary to tender the whole chain of title at the time the vendor tenders a deed to the vendee. In many cases this would *312 be absolutely impossible; as, for instance, when a patent covers a large tract of land which is subsequently divided into many parts, which is extremely common, the owner of every part cannot have the original patent: and so, in relation to a deed from an individual for a large tract afterwards divided into parcels, the owner of each parcel cannot have the original deed; and in this country, where titles are on record, it is of no consequence, because the vendee can resort to the record for information as to the title. The rule is caveat emptor. It is the duty, therefore, of a purchaser to examine for himself. The defendant is not bound to accept a doubtful title, but it is his business to show that it is doubtful, or positively bad. In England, it is customary to give to the vendee an abstract of the title, but that is not usual here. It is common, however, to recite the chain of title in the preamble to the deed. We do not know whether that was done or not in this case, as the deed is not oh the paper-book. But the tender of the deed was sufficient to enable the plaintiff to recover, it being conformable to the contract. This was ruled in Jones v. Love, 4 Watts 465 , and more specially decided in Martin v. Hammon, 8 Barr 212, and in Snevily v. Egle, 1 W. & Ser. 480. In the two latter cases, the plea was payment and covenants performed and non est factum, just the same as in this case. There was here added, upon leave, a special plea of the rescisión of the contract, but that in no way impugned, or denied, or controverted the title of the plaintiff, and left the principle on which Snevily v. Egle and Martin v. Hammon was decided, in full play and operation on this case, to wit, that he did not manifest, on this record, any intention to deny the title, and therefore he was bound to prove it defective. The covenant, on the part of the plaintiff, is well and sufficiently to grant, convey, and assign in fee simple, &c. This covenant is satisfied by a deed in fee simple, with special warranty, or without general warranty. The chain of title is fully set out in the article of agreement, and, I presume, was as fully set out in the deed. It is fair and good on its face, and there is nothing in the pleadings or evidence to impeach it.

As to the fourth error assigned, it is of no account. A good cause of action is set out in the narr.

Judgment affirmed.