Elbert v. O'Neil

Mr. Justice Sterrett

delivered the opinion of the court, March 26th 1883.

*305 In equitable actions of ejectment, grounded on articles of agreement for the sale of land, recovery by the vendee is not of strict right but always of judicial grace. Under our mixed system of jurisprudence, in which principles of equity are administered in common law actions, ejectment is practically a substitute for a bill in equity to enforce specific performance of the contract. The trial judge, with the aid of a jury to assist him in determining disputed questions of fact, occupies the place of a chancellor and should never sanction a verdict, the effect of which would be specific enforcement of the contract, unless the equity of the case is clearly with the plaintiff. In doubtful cases he should withhold his aid and thus remit the plaintiff to an action at law for the recovery of such damages as he may have sustained by breach of the contract. These principles are recognized in many of our cases, among which are Henderson v. Hays, 2 Watts 148 ; Freetly v. Barnhart, 1 P. F. Smith 279; Piersol v. Neill, 13 Id. 420; Brady’s Appeal, 16 Id. 277: and Weise’s Appeal, 22 Id. 351. In Brady’s Appeal, supra, which was a proceeding in the Orphans’ Court to enforce specific performance, it is said the principles governing that subject are the same, whether the case be in the Orphans’ Court or in the Common Pleas. “In equity proceedings it is well settled, the decree is of grace and not of right, and a chancellor if he finds reason to withhold his assistance, will refuse specific performance and leave the party to his remedy for damages. . . . It is the duty of the judge trying the cause, if the case be insufficient in equity, to take it from the jury by instructing them that upon all the facts proved, the plaintiff is not entitled to a verdict. He takes the place of a chancellor in such a trial and must see that a verdict be not rendered against the principles of equity.. For though the action is in form at common law, the plaintiff seeking to recover on an equitable title is permitted to do so only on the principle that equity considers that as done, which according to equity ought to be done. If, therefore, a chancellor would feel that he ought not to be moved by the facts presented, a decree should not be granted.”

Applying these principles to the facts of this case, as presented by the evidence, we are of opinion that the defendant’s third point should have been affirmed, and a verdict directed in her favor.

Early in the morning after the funeral of Mrs. Elbert’s husband the plaintiff below called at her residence and made a verbal agreement with her for the purchase of the land in question, which agreement was reduced to writing and signed by the parties a few days thereafter. When the verbal contract was entered into, she was aware that her husband had made a *306 will, in which she was appointed executrix, but she was ignorant of its provisions. Before signing the agreement, however, she learned from the will that, the land in question was devised to her; but, beyond that, she had very little if any information as to the condition of her deceased husband’s estate. It is very evident that neither then nor for several weeks thereafter had she sufficient knowledge of its condition to enable her to form an intelligent judgment as to whether it would be to her advantage to accept the provisions of the will or not; and if she had been in possession of the necessary information, it is very doubtful whether she was in a proper frame of mind to consider and decide that question. Her attending physician, Dr. Thompson, testified in substance that he visited her professionally about a week after her husband’s death and found her in a very nervous condition, laboring under great nervous prostration, very much worried, &c. He also expressed great doubt as to “ whether she was competent to enter into a bargain or contract.” Shortly after the agreement was executed, when she had recovered from the shock occasioned by her husband’s death, and acquired some information as to the condition of the estate, its assets, liabilities, etc., she repented of what she had done and notified the defendant in error of her determination not to receive the purchase money or execute a deed, and offered him $100 to cancel the contract without litigation.

It is contended that, by her agreement to sell the land, the widow elected to take under the will, and whatever may be the effect of such election as between her and the heirs of the testator, it is absolutely conclusive as between her and the defendant in error, who is a stranger to the estate. As applied to the undisputed facts of this case, we are not prepared to admit the correctness of this proposition. Clearly, as between her and the heirs, an election, under such circumstances, would not be binding on her; nor is there any good reason why a stranger, who, in such indecent haste and with such knowledge of the widow’s circumstances as the defendant in error possessed, obtains from her what he claims to be a conclusive election to take under the will, should be placed on a higher equitable plane than an heir would be permitted to occupy under similar circumstances. The right of a widow to make her election understandingly is guaranteed to her by the law, and it should be respected by strangers as well as heirs.

Without adverting to other matters which tend to the same conclusion, it is sufficient to say that facts and circumstances disclosed by the testimony, and standing uncontradicted, present such a case as should induce a chancellor to refuse specific performance of the contract.

If the plaintiff in error neglects or refuses to pay or tender *307 within a reasonable time, the amount she received on account of purchase money, an application will be entertained for a venire facias de novo, otherwise it is deemed unnecessary.

Judgment reversed.