
    Youst and others against Martin.
    
      Friday, October 3.
    
    In ejectment, a person who liad adjudgment against the plaintiff's intestate unpaid, and a scire facias upon it depending, which nad been served on the tenant of the land in dispute, but the personal property was many tiroes the amount of the debt, and the administratrix had given security5 and it did not appear how the property was administered, washeld to be a competent witness for the plaintiff.
    A demand of possession is waved when the tenant, on being informed of the plaintiff's claim, previously to bringing the ejectment, refuses > to recognise it.
    It is for the jury to decide , the question, whether a 1 contract was I rescinded, when it dei pends on a variety of disputed facts.
    Where a sale was made ofland, under articles of agreement with a person having the legal title, and holding the possession, and the purchaser paid part and took possession, and then received notice of an equitable title under an agreement not recorded, in one who had been guilty of negligence, held, that the latter could not recover the land, without repaying the money paid by such purchaser before receiving notice. _
    In Error.
    ERROR to the Court of Common Pleas of Cumberland county, in an ejectment brought by Janies Martin and others against John Youst and others.
    Both plaintiffs and defendants claimed under James M’-Lene, who, on the 23d March, 1793, entered into articles of agreement for the sale of the land in dispute to John Martin, deceased. A considerable part of the purchase money was paid by John Martin, in his life time, (who was in possession under the articles of agreement,) and by his widow and administratrix after his decease. But the payment of the whole not having been made, M’-Lene brought an ejectment and recovered the possession in the year 1794. In March, 1802, M’-Lene entered into articles of agreement for sale of the premises to John Youst, one of the defendants, and in December, 1811, he executed a deed of conveyance to Youst, having received payment of the whóle purchase money. At what time Youst received notice of the contract between M’-Lene and John Martin was matter of dispute. Neither did it clearly appear what part of the purchase money Youst had paid when he received notice. But he had certainly paid a considerable part.
    , 1 i On the trial of the cause a bill of exceptions was taken by the defendants to the admission of William Martin’s deposition, on the ground of incompetency on account of interest. William Martin had obtained judgment against John Martin, in his life time, at March Term, 1785, for upwards of 20 pounds which remained unpaid ; and the said William at the time of his deposition’s being taken, had a scire facias on his judgment depending against the tenants of the land in contest. John Martin’s personal estate amounted to near 200 pounds. Margaret, his widow, was insolvent, but had given security when she took out letters of administration. William ' Martin being examined by the defendants on his voire dire, answered, that he considered himself as no way interested.
    Various exceptions were taken to the charge of the Court below, and were now assigned for error.
    1. The Court was requested on behalf of the defendant to charge the jury, that
    “ As Toiist held the legal title, his deed recorded, and notice given when the money was tendered, that he was the man in interest, no ejectment could be supported, till demand of possession.” The President of the Court below charged, that “ the money to be tendered after the execution of the deed, the time of recording of the deed, and notice to the plaintiff as stated by John Martin, ought to have been to Youst; but as no such tender is pretended to have been made, it is unnecessary to answer it, as it respects Youst; and if it is intended to apply the ‘tender to James M'Lene, he was told he must either refund the money or give the land, or they would compel him. The Court is not satisfied, that such a demand would be indispensible. The tender implies the demand. But here, if it was requisite, and John Martin is believed by the jury, such a demand was completely made. If the plaintiffs had complied with their contract by a prompt payment of the monies, before James M’-Lene had divested himself of his interest in the land, by his sale to Youst, I am of opinion no demand became necessary to be made of ther possession from Youst. After the plaintiff had notice of the sale to Youst, and that he, M'-Lene, refused to have any thing to do with the money, or make any terms with the plaintiffs, the tender, as I have before mentioned, should have been made to Youst, with such explanation of the object and design of the tender, as directly or impliedly would shew, that the plaintiff called for a specific performance of the contract made by the ancestor of the plaintiff with M’-LeneY
    
    
      2. The Court was requested to charge, that “ the money should have been brought into Court.” The charge was, “ where money is admitted to be due in such a contract, although a tender has been made of it in due form, it ought regularly to be brought into Court.”
    3. The Court was requested to charge, that “ there being a judgment in ejectment, and the purchase made by Youst subsequent tp this judgment, without any act being after-wards done by the Martins to prosecute the claim, or demand a specific performance previous to the sale and conveyance,' till after the payment of all the monies by Toust to Martin, the defendant stands protected.” The Court charged as follows : “ The recovery in ejectment by James M'-Lene was a re-possession, in a legal course, obtained by James M'-Lene, of land sold by him, when the vendee, having been put in possession, neglected to comply with his contract. The judgment, if acquiesced in, would be strong evidence against the purchaser of his neglect and backwardness. If no application to the Court to set aside the judgment, nor any act of performance afterwards appears, this remissness of the plaintiff, if not repelled by other evidence, would every moment become stronger, amounting in time to strong presumptive proof of an abandonment. But in itself it did not work a forfeiture; and its general effects I have thus endeavoured shortly to state to the jury.”
    4. The Court was requested, on behalf of the plaintiff, to charge, that if the jury believe John Toust had notice of the previous sale to Martin at the time he made the purchase, he is in no better situation than James M'-Lene would be, and, that the plaintiffs are entitled to recover. The Court charged the jury, that “ the only proof of notice offered is the evidence of Justice Watson, except what arises from the deed of M 'Lene to Toust. In describing one of the parcels, he calls for land as being Martin’s. It is submitted to the jury, whether they can infer from this evidence, that John Toust heard the conversation between Justice Watson and James M'-Lene. If so, as the purchase money was not then all paid by Toust to M'Lene, he, Toust, was bound by the notice and was called upon to make inquiry. Notwithstanding the judgment in ejectment and part payment, if he had notice before the execution of the deed and before the purchase money paid, I am, of opinion, that the plaintiffs, by due diligence, might have proceeded, by prompt payment of the purchase money, and other acts of compliance with the contract, to entitle themselves to a specific performance against Toust; and that the situation of Toust, immediately on receiving notice, and before he paid his money, was no better, subject to the effect of the judgment, than that of M'Lene. The purchase on the faith of the judgment, may be considered, if known to him, (and it may be presumed,) as adding to the equity of Youst; and the acquiescence under it, from 1799, till 19th March, 1801, the time of the sale to him, and no application having ever been made to disturb or open the judgment, and the subsequent delay from 1803, till the time of tender in 1808, the time of the ejectment, furnish strong evidence against the plaintiffs’.recovery.”
    The jury found for the plaintiffs.
    
      Browne and Duncan, for the plaintiffs in error.
    
      William- Martin was interested, because he had a judgment against John Martin, which he expected to realise in case of a recovery in this suit. He was proceeding against the terretenants of the land now in dispute, by scire facias to recover his debt. The administratrix was insolvent. He was, therefore, to gain by the event of this case, favourably to the plaintiff below. In Innis v. Miller,
      
       a creditor was rejected who had no expectation of payment unless the plaintiff recovered. They cited also M'Veaugh v. Goods,
      
       1 Str. 129. 4 Binn. 80.
    Then as to the charge of Court.
    1. Youst having come into possession under legal process, and holding the legal title, could not be considered as a trespasser until the possession had been demanded. Even if considered as a trustee, his possession was a legal one, and continued such until demand was made. A tenant at will, and a mortgagee, must have notice to quit. 1 Johns. 322. 326. 2 Johns. 73. 4 Johns. 187. Here Youst, if liable to be removed, was in the situation of a tenant at will.
    
      2. There is error in the Court’s saying, that the money ought to be brought into Court if admitted to be due. For if the money was really due, though not admitted by the party, it ought equally to have been brought into Court; The Court ought to have gone further also, and instructed the jury, that as the money was not brought into-Court, the plaintiff could not recover. On a plea of tender, the money must be brought into Court.
    3. The Court ought to have charged the jury, that the contract was rescinded. After four years the rescinding of a contract was presumed. 3 Johns. Cas. 60.
    4. It was error to say, that notice before all the money was paid was sufficient. The purchaser ought to be protected if a great part of the purchase money was paid.
    
      McCullough and Watts, contra.
    Though William, Martin had a judgment for 20 pounds, and had taken out a scire facias, yet it appears, that John Martin, the intestate, left personal property amounting to near 200 pounds. Besides, he swears that he had no interest.
    As to the errors assigned in the charge.
    1. The jury had a right to judge of the fact, whether Toust purchased this land with notice of the claim of Martin, and by their verdict they have found that he did. A purchaser with notice is bound to the same extent as the vendor. Sugd. Vend. 484. On the whole of the Court’s opinion, it was strongly in favour of the defendants.
    2. The Court did say, that if money was admitted to be due, it should be brought into Court, which was tantamount to saying, if any thing was due. But we denied that any was due, and so the jury thought.
    
      3. The Court had no right to say whether the contract was rescinded i that depended on facts of which the jury were to judge. But they said a recovery in ejectment was not in itself a rescinding of the contract; and the law is clearly so.
    Notice before actual payment of all the money, though it be secured and the conveyance be executed, or before the execution of the conveyance, although the money be paid, is equivalent to notice before the contract. Sugd. Vend. 487, and cases cited.
    
      
      
         2 Dali. 50.
      
    
    
      
      
        5) X Dali. 62.
    
   Tilghman C. J.

(After stating the case.) In general, the creditor of a deceased person may be a witness, although his testimony tends to increase the estate of the deceased. But I should think that he would not be competent, if it clearly appeared, that payment of his debt depended upon the event of the suit in which he was called to testify. In the present case, it does not clearly appear so; because the personal estate of the deceased was many times the amount of William Martin's debt, nor was it proved in what manner that estate has been administered. I am, therefore, of opinion, that the deposition was properly admitted. Besides these exceptions to the evidence, four objections- have been. made to the., charge of the Court, which is placed on the record.

1st. It is objected, that the Court ought to have informed the jury, that the plaintiffs werenot entitled to a; recovery, without proof of a demand of possession, previous to the commencement of the ejectment. The Court were of opinion, that a formal demand of possession was not necessary, provided the plaintiffs paid or tendered the balance of the purchase' money to M'Lene, before his salé to' Totist, of which payment or tender, Toust had notice at the time of his contract ; or, provided that such payment or tender was made to Toust himself, after his contract, with such explanations as shewed that the plaintiffs insisted on their right. The charge of the Court amounted in substance to what the defendants suppose to be the law. For where is the difference between a demand of possession, and a demand of performance of the contract by one party, and refusal by the other? To what purpose would be a demand of possession, when the party in possession had declared that he would not comply with the agreement between M'Lene and John Martin? A demand of possession is for the benefit of the tenant in possession. It may be waved, therefore by the tenant, and it is waved, when the tenant, being informed of the circumstances of the plaintiffs’ claim, refuses to recognise it.

2d. The second objection is, that the Court ought to have directed the jury, that the plaintiffs were not entitled to recover,. unless the balance due from John Martin was brought into Court.

The Court said, that where money is admitted to be due, it ought regularly to be brought into Court, although it had been tendered before the suit. The objection is to the word admitted. The defendants contend, that whether admitted or not, makes no difference, provided the money was really due. This is a criticism on words. Certainly, the admission of the party is not material, neither do I suppose that the Court meant to intimate that it was. The plaintiffs did not admit any balahce, but offered evidence, tending to prove payment of the whole. This was denied by the defendants. Whether any balance was due, was matter of dispute. This was to be decided by the jury. When the Court, therefore, spoke of a balance- admitted, they meant a balance in fact due, in the opinion of the jury. It is hardly possible that the jury could have been misled by the Court’s expression. I am, therefore, of opinion that this objection is unfounded.

3d. The third objection is, that the Court ought to have instructed the jury, that the contract between M'-Lene and John Martin, was rescinded in consequence of the laches of Martin and his heirs. But I am clearly of opinion, that the charge of the Court was right. Whether the Contract was, or was not, relinquished, Was a question depending on a variety of disputed facts. These facts it was not,for the Court to decide. They submitted them, therefore, to the jury, with very pertinent remarks on the evidence, inclining strongly in favour of the defendants. The defendants, therefore, have no cause for complaint.

4th. The fourth objection involves a point of very considerable importance. Toust had paid a large part of his purchase money before he received notice of the agreement between M'-Lene and John Martin. It was a question, what was the effect of such notice. The Court charged, that,the notice was sufficient, provided it was received before the execution of the deed of conveyance from M'-Lene to Toust, and before payment of the whole purchase money. To this broad proposition I cannot assent. It would lead to consequences very alarming. It has been much the custom, in Pennsylvania, to make sales of land under articles of agreement, by which the purchaser paying part of the money in hand, enters into possession, and pays the residue, by instalments. Suppose, in a case of this kind, after many years possession, and improvements made, part of the purchase money being still due, and a conveyance of the legal estate unexecuted, notice should be given of a prior contract for sale of the' same land. Can it be said, that it would be against equity, for the man in possession to obtain a conveyance of the legal estate ? or, that a Court of Equity would force him to give it up till he had at least been reimbursed the money which he had paid before he received notice? or, if the improvements had been expensive, or the lapse of time considerable, would he be compelled to give it up at all? In cases of this kind, equity depends very much on circumstances. We should be cautious, therefore, in laying down general rules. I would only say, at present, that before the defendant, Toust, was forced to give up the possession, he ought to be reimbursed the money which he had paid before he received notice. He had paid his money on the faith of the legal title, which, together yvith the possession, he found in M'Lene, who had recovered the land by an ejectment. The persons who now call for equity, were the cause of his paying this money; he has suffered by their negligence ; his equity, therefore, is stronger than their’s. When he found that he had been deceived by M'Lene, there was nothing against conscience, in his procuring the legal title, in order to cover himself against the damage he had sustained, through the fault of the plaintiffs. And they, having drawn him into this embarrassment, ought not to object to indemnify him, to the amount of the damage suffered through their negligence; that is to say, the amount of the money paid before notice. I am aware, that the law is laid down in Sugden’s Law of Vendors, 487, precisely in the terms in which it was stated in the charge of the Court. I have examined the cases to which Sugden refers, but do not find, that the exact point now in question came under consideration. Those cases do say, that notice before payment of the whole purchase money, is sufficient, for the purpose of compelling the person who receives notice, to give up the estate; but upon what terms, and whether he is not to be indemnified, does not clearly appear. There is, besides, an important difference between the law of England and Pennsylvania. By our recording act, 18th March, 1775, every man, who has articles of agreement affecting the title of land, may place them upon record, which will be notice to all the world; so that he who does not place them on record is guilty of laches. In consequence of this law, it is the custom for purchasers to search the records before they pay their money; and if they find nothing there, they conclude that they are safe. But in England, such articles are not recorded, and the purchaser relies on the possession of the title papers. I know of no decision in this Court, which reaches the subject. If there had been, I should acquiesce, however contrary it might be to my own opinion. I desire it to be understood, that I lay down no general rule; nor is any inference to be drawn beyond the case now before us. Circumstanced as that is, I think the defendants should hold the land until the money is reimbursed which was paid, before notice of Martinis contract. I am, therefore, for reversing the judgment, and awarding a venire facias de novo.

Gibson J.

The mere circumstance of being the creditor of a person who has died intestate, has never been held suffi- ' cient to render a witness incompetent, when called to support the title of the intestate. Yet I cannot perceive any good reason for making the case of such witness an exception to the general rule, that a vested interest in the event of the sub, however small, disqualifies. A creditor has certainly a direct interest in supporting his debtor’s title to property, which the law has made a fund for the payment of his debt, even in the hands of a third person ; and although there may be more than sufficient to pay all the debts, still the creditor has an interest in protecting his lien as to every part of it; for his security is thereby enlarged. A bankrupt is not a witness to increase the fund, although it be certain, in fact, that after payment of the debts, no surplus will remain, or that he will not be entitled to any allowance; for still in contemplation of law, either of those events is possible, and the bankrupt has a certain interest in the possibility. In this case, the witness had no lien under his judgment obtained in .1785; for Martin acquired his interest in the land after-wards ; but he had a lien equally operative under the intestate laws. It is very clear, that a mortgagee, on account of having a specific lien, would not be a witness for the mortgagor. But I apprehend the practice has been to admit the creditor of an intestate; and I therefore take the law to be settled.

I hold a demand of the possession from either M'Lene or Toust, to have been totally unnecessary ; a tender of the purchase money, if made with proper explanations, was alone requisite. If 2oust purchased with notice of the previous sale to Martin, the tender would be well made either to M.'Lene or Toust, at the option of Martin; and if made to the former, Toust would be bound to take notice of it. Being guilty of an attempt to defraud, by conspiring with M’Lene to defeat the sale to Martin, the law would bestow no consideration on any right he might set up ; it therefore would not lie in his mouth to object for the want of a demand of possession, or that a tender was not made to him. But a tender actually made to him would supersede the necessity of one to M'Lene, who, by his voluntary act, had substituted him in his own place. On the other hand, if Toust purchased without notice, no suit, with or without a demand, could be • sustained. It is not pretended that, as against M'Lene himself, a demand would be necessary. A tender, being in its nature an act preliminary to performance by the opposite party, is, in substance, a declaration of intention, by the party making it, that he means to insist on the fulfilment of the contract. The case of a tender immediately before harvest, is put; and it is asked whether, in that event, the defendant ought to lose his crop. If he purchased with notice he ought to lose it as a punishment for his fraud; and if without notice, he would lose neither the crop nor the land.

It is objected, that the jury were instructed, that it is necessary for a plaintiff to bring money into Court only when he admits it to be due. This error is assigned in a manner to pervert the meaning of the Judge. Let all that was said on the subject be taken together, and it will amount to this •.’ — all the money due by the plaintiff must be tendered before suit brought; and the money thus admitted to be due, he must, moreover, have in Court. Could the defendant ask more ?

The recovery of the land by MlLene, unconnected with other circumstances, did not rescind the contract. Martin had paid a considerable part of the purchase money before he was turned put; and M^Lene, therefore, after he resumed the possession, held as a trustee for him, just as if he, had never parted with it. But, although the recovery in ejectment did not work a forfeiture of Martin7s right to have the contract executed specifically, other circumstances might have that effect. Time is of the essence of the contract, at law; but in equity, it may be the subject of compensation. Mere default jf payment of money at a stipulated time, in general, admits of compensation. The plaintiff’s not having performed his part of the agreement, precisely at the time stipulated, is not a sufficient ground for a court of equity to refuse its assistance, unless from the nature of the contract, compensation cannot be made ; but if it can, not only exact performance at the • precise time will be dispensed with, but, also, all formal and immaterial circumstances. But if there be laches or backwardness on ,the part of the plaintiff, equity will not interpose. So here, Martin, or his heirs, would not be permitted to play fast and loose; for any circumstance evincing an acquiescence on their part in acts of M’-Lene inconsistent with the estate he had contracted' to convey to them, would conclude them; and indeed mere lapse of time might have that effect. They would not be permitted, at any indefinite period, to. avail themselves of an adventitious increase of the value of the land, by insisting that the contract still continued. -In this point of view the cause was put to the jury, and I am clearly of opinion this part of the charge was right.

An error is assigned on this record, in a point of great importance in this country. It very frequently happens, that sales of land are made on long credits, the purchase money being payable by yearly instalments. If notice alone of a former sale or secret incumbrance, given at any time previous to payment of the whole purchase money and execution of the deed, without indemnity tendered, should affect the land in the hands of a purchaser, certainly innocent at the time he bought and paid his money, most deplorable injustice would be the consequence. I do not say, that in every event, part payment ought to protect the land, in the hands of a purchaser without notice, from a trust or incumbrance. But before the cestui que trust or incumbrancer shall affect his title, it will be necessary to indemnify him for all payments and improvements made by him, up to the time when he first received notice. Shall his land be swept away, and he be left to get back his money in the best way he- can from the vendor, who may in the mean time have become a ¡bankrupt? Every principle of justice forbids it. I confess I have found no case in which indemnity to the purchaser has been made a condition precedent to ' granting relief; for it is laid down as a' general principle, that notice to the purchaser, either before payment of all the purchase money or the execution of the deed, is sufficient to affect him : but in none of the cases on the subject, did the defendant insist on indemnity, but on the contrary, claimed the land itself, insisting, that part payment gave'him an indefeasible title. The case of Wigg v. Wigg, 1 Atk. 384, is badly reported ; it contains no statement of facts, or at least a very lame one. The point of notice was not argued by the counsel; and we do not know how it arose, or whether it arose at all; but there certainly is a dictum of Lord Hardwicke in the report, that notice before payment of all the money is good. Jones v. Stanley, 2 Eq. Ca. Abr. 685. pi. 9, is a short and imperfect note of a decision entirely destitute of weight in the present inquiry. In Story v. Lord Windsor, 2 Aik. 630, there was a plea of a purchase without notice, not for the purpose of obtaining a compensation, but of holding the land. More v. May how, 1 Ch. Ca. 34, was a similar case, and in addition' no part of the purchase money was averred to have been paid. In Pour Nile v. Nash, 3 P. Wms. 306, the question was, whether giving bond for the purchase money was, in law, a payment of it, so as to prevent the operation of notice given before payment in fact. From these cases Mr. Sugden draws the very inaccurate conclusion, that notice alone, before the execution of the deed and payment of the whole purchase money, will defeat the estate of the purchaser. Sugd. Vend. 487. In Lambert v. Nanny, 2 Munf. 196, the grantee had not been induced to part with a farthing in consequence of his purchase, the consideration of the deed being a debt due before the contract of sale was made. By drawing a conveyance in trust for Nanny, Lambert, the purchaser, was put in statu quo. In Blair v. Owles, 1 Munf. 38, the question of compensation was not touched, nor could it be, for it appeared from the deed, that the purchaser had notice before he paid any part of the money. In none of these cases does it appear, that in doing justice to an incumbrancer or cestui que trust, chancery will disregard the rights of an innocent purchaser. It is abhorrent to every feeling of justice, that he should lose the land and his money too, merely because he had notice of a prior sale, before the last shilling was paid; yet to this extent the rule would go. I deem it requisite for the party seeking relief, before he asks it, to tender the purchase money actually paid with interest ;■ and even then the case is not clear of hardship. I will not say, that where improvements are made, a tender also of their value, in addition to the money paid, would avail the plaintiff, or that the title of the improver could be affected in any event. But that case is not before us. I am of opinion, the Court erred in not instructing the jury, that a tender of the money paid by Toust to M'-j.ene before receiving notice, together with interest, was indispensible. The direction, that notice at any time before the consummation of his purchase would affect Toust, without stating the whole law on the subject, had a direct tendency to mislead; the judgment, therefore, ought to be reversed.

Duncan J. gave no opinion, having been counsel in the cause.

Judgment reversed, and a venire facias de novo awarded.  