Lessee of Minsker v. Morrison
Lessee of John Minsker and Ludwig Bale against James Morrison
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Summary
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Opinion of the Court
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Teates, J.
That case, as far as I can recollect, was very differently circumstanced. There the great question was, whether a prior voluntary deed from a father-in-law, or subsequent articles of agreement with a third person, with the knowledge of the son-in-law, should be carried into execution. A complete tender of the money due under the articles, and also of bonds with satisfactory security for the residue was proved, before the commencement of the suit. The payment of the money into court was not insisted on by the adverse counsel, though it was expressly stated in the charge that it ought to have been done. But the validity of the prior deed was chiefly insisted on by the defendants, though there appeared many suspicious circumstances against it.
The plaintiff’s counsel added, we are willing to come into any terms that may be deemed just or equitable. We will ask for neither judgment nor execution, till the whole of the money due under the court’s opinion, shall be fully paid, provided the verdict goes for our clients. If the money is not paid on the return of the postea, we will agree*to enter a non-suit. At present, the plaintiff is unprepared..
The court declared their opinion, that the Supreme Court, and the several Courts of Common Pleas, had an implied limited chancery jurisdiction, under the words of the Constitution, (Art. sect. 6. 3 Dall. St. Laws, XXX,) that “ besides the powers heretofore usually exercised by them,” they should have the powers of perpetuating testimony, &c. But this authority was to be used with sound discretion, and the intervention of a jury was indispensably necessary according. to the adopted practice. In courts of equity, a decree to convey under an agreement is uniformly accompanied with the payment of the purchase money. Until the conveyance is made or supposed to be made, the vendee has no legal right to recover in ejectment. Whenever the interposition of Chancery is asked for, it will oblige the applier in all cases to do the fullest justice. “ He who seeks for equity must also do equity himself.” On an agreement the plaintiff must not only show that he was in no default, in not having performed his part, but must also allege that he is still ready to perform it. 1 Ponbla. 383. The general rule therefore clearly must be, that the purchaser who seeks for redress under articles, must bring his money into court, in order to show his readiness to perform Shis contract. The adversary however may, if he pleases,, modify or relax the rule.
*347 The further hearing of the cause was adjourned until the afternoon, to give the lessors of the plaintiff an opportunity of bringing in the money; and again until the following morning for the same purpose ; but they not being able to effect it, the plaintiff suffered a nonsuit, the court reserving the point, in case his counsel should think propor to move it in bank.
The defendant under the courts recommendation, entered into an agreement to repay the 30?. and interest, to the lessors of the plaintiff on the 22d December following.
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