
    HUGHES VS. HEINTZLEMAN.
    The measure of damages for the breach of a parol contract to convey land is-the money paid, and the expenses incurred in the faith of the bargain.
    Error to the Common Pleas of Luzerne County. No. 325, Jan. Term, 1884.
    This was an action of assumpsit, to recover back money paid on a parol contract to convey land. The Court chai’ged the jury • as follows:
    Gentlemen oe the Jury' : — Our insti'uctions will be quite brief, and we will not go over the testimoxxy in detail. The disputed questions of fact must be decided by you. You are to determine what is the credible testimony in the cause with regard to such disputed facts, and decide as to them in accordance therewith.
    Where there is a conflict in the testimony of witnesses, you will, if possible, reconcile it with the credible testimony in the cause. If unable to do so, you will endeavor to ascertain from all of the circumstances, corrobox’ations, and otlier matters, which of the witxxesses have told the trut-li with regard to the transaction, and decide accordingly. Wherever in our chax’ge we may speak of the allegations of the plaintiff, or of’ the defendants, you will understand that we express no opinion as - to the credibility of the witnesses, but simply refer to what they testify to.
    [The plaintiff alleges that'the defendants entered into an oral contract with him to sell and convey to him a certain tract of land in Foster Township, and to give him a good deed, a good title for the same; that the price agreed upon was four hundred dollars; that he has paid the purchase money, but that the-defendants have broken their contract in not having made or-given him a good deed, as they undertook to do. This action is brought to recover damages for the breach of the alleged agreement referred to.
    Now, if you should find that the defendants made the agreement as alleged by the plaintiff, and that they have not complied', with same, then, though the plaintiff could not compel the-defendants to perform such agreement, because it is not in writing, and though he could not maintain aii action to recover damages for their breach of the contract, yet he could recover compensation for the money paid and expenses incurred on the-faith of the bargain] ; and this, in the absence of fraud, is all he-could recover. If no fraud was meditated and designed in the-making of the contract the refusal to perform it is not such a fraud as would enable the purchaser to recover more than the-amount paid by him, with legal interest. But where in the execution and in pursuance of a contract for the sale of land, a deed is to be made and delivered, it is the duty of the purchaser to protect himself against defects in the title, by requiring the insertion in the deed of apt covenants ; and if he -has no such covenants inserted in it, he takes the risk on himself; and if such covenants are inserted in the deed he must rely on them— in neither case if there be no fraud or misrepresentation, and if he has paid the purchase money, can he recover on the contract in any form of action, damages, even though the title turns out to be utterly worthless. He must proceed on the covenants in the deed, if there be any, and if not, he must bear the loss, himself.
    Now, upon this principle — which is well settled — the defendants contend, in the first place, that whether the title to the land embraced in the contract be good or bad, the plaintiff cannot recover — for the reason that the contract was consummated by the delivery to him of the Sheriff’s deed.
    You will remember under the testimony that in May,. 1876, a judgment was entered of record here in favor of Hughes & Koenig against John Kocher, that upon that judgment an execution issued, and the interest, whatever it was, of John Kocher— his title — was levied upon by the Sheriff, and on June 10th, 1876, was sold at Sheriff’s salo and struck down to Hughes and Koenig. On the 29th November, 1876, a deed was executed and acknowledged in open Court to William Heintzleman, and this deed was subsequently, in January or February, according to the testimony of the plaintiff — and that of course is a question for you — delivered to Mr. Heintzleman by Mr. Hughes. If the defendants had delivered to the plaintiff their own deed the principle which had been relied upon here would be applicable ; the contract would have been at an end, and in the absence of clear proof of fraud, would have been fully consummated and merged in the deed, and the plaintiff could not recover, however defective or worthless the title might be. So, also, although by the contract the plaintiff might have been entitled to demand a deed from the defendants themselves, if he did not do so, but voluntarily, and without objection, took the Sheriff’s deed in lieu thereof, no fraud being practiced upon him, and he knowing that it was not the defendants own deed, then under the evidence in the present case he cannot recover. He is not relieved under such a state of facts by the defects in the title which he might have protected himself against.
    The testimony pertinent to this phase of the case — because, as you observe, we propose to leave as a question of fact for you to decide, the question as to what was the intent of the parties in regard to this delivery of the Sheriff’s deed, and what the effect to be given thereto — the testimony pertinent to this phase of the case is that given by the defendants, and the evidence of the proceedings before the Justice of the Peace for the recovery of the possession by the plaintiff, and. the execution of the lease by him to John Kocher. If from the evidence you shall find that the Sheriff’s deed was accepted by the plaintiff in lieu of the deed of the defendants, or in consummation of the contract, then your verdict should be in favor of the defendants. He could not afterwards repent, and recover damages for a defect or failure of title which he might subsequently have discovered.
    But the defendants ask us to go further, and to say, as matter of law, that the delivery of the Sheriff’s 'deed was a consumation of the contract, as fully as if they had delivered their own deed.
    This raises a legal question of some difficulty, which has been argued with great ability ; but we are inclined to think, under all the evidence in the case, that the matter should be left to you as a question of fact, to be decided from the testimony, and from the circumstances of the delivery of that paper. 'We do say, however, that in order to entitle the plaintiff to recover, it is incumbent upon him to satisfy you that the contract was for a conveyance by the defendant of the land, and not merely a conveyance of Ko cher’s interest in the same, as alleged by the defendants ; that this contract was not subsequently modified by the parties to an agreement to take the Sheriff’s deed; was not accepted by him in lieu of defendant’s deed, or in full consummation of the contract.
    You will remember the testimony upon this subject. They swear he took the deed without objection; but, on the other hand, he swears he insisted that it was not the deed he had bar-gained 'for, and that he made frequent complaints to Mr. Koenig thereafter in that regard.
    What was the fact then ? Was this deed accepted in lieu of the deed of the defendants, or in consummation of the parol contract which they had previously entered into.
    So much in regard to the plaintiff’s case. It is alleged by the defendants that the contract was not as the plaintiff asserts. They say that at the time of the bargain they had already bought the property at Sheriff’s sale, and that would seem to be so under all the testimony in' the case — but that no deed had been made to them, and that which they agreed to do and which the plaintiff assented to, was to assign their bid to him and have the Sheriff make a deed to him in pursuance thereof, and that this was accordingly done.
    Now, if this be the fact, gentlemen, then the contract was carried out according to the intent of the parties and the plaintiff cannot recover. This, however, requires you to decide the question of fact as to what the contract was. Was it a contract for the sale of the land and a good- title for the same, out and ■out? Or was it a contract for the interest therein of John Kocher; and was it carried out in accordance with the agreement of the parties by a transfer of the bid to the plaintiff, and the making of the Sheriff’s deed to him.
    In case you find for the defendants your verdict should be •generally for the defendants. In case you find for the plaintiff you will ascertain what damages have been sustained by reason ■of the breach of contract, and render a verdict for that amount with interest; but in no event can you render a verdict for the plaintiff for more than the has actually expended on account of •the purchase of the property.
    With those instructions we leave the case in your hands with the exception of answering the defendants’ points, which have been submitted. They are as follows:
    I. That under the evidence adduced on the part of the plaintiff that he bargained with the defendants for the. purchase of the Kocher land which they acquired at Sheriff’s sale; that he paid the consideration money to them, to wit, $400.00, and accepted from them the Sheriff’s deed for said land, and obtained posses■sion thereof by proceedings duly instituted before two Justices •of the Peace, which possession was never disturbed by any one •claiming under paramount title, the plaintiff cannot now maintain an action to recover back the purchase money on an allega■tion that the title to said land is defective.
    This point substantially requires us to take the case from you and withdraw from your consideration the question of fact which we think should be submitted to you. We therefore answer the point in the negative. -The facts stated in the point are pertinent ■.to the question which we have submitted to you.
    II. The payment of an agreed price for anl acceptance of a •deed of a given lot of land without asking or taking covenants-of warranty, general or special, precludes a vendee from recovering back the purchase money in the absence of proof that actual fraud was perpetrated upon him by the vendor.
    This point we affirm, and have already so charged in our ■general charge.
    III. There is no allegation or proof on the part of the plaintiff’ that a fraud was practiced upon him by the said defendants in the sale of said land ; consequently, he is not entitled to recover, ■and the verdict should be for the defendants.
    We decline to charge as requested in that point. Like the first point, it requires us to withdraw from your consideration the questions of fact which we think should be submitted to you, namely, as to whether or or not the Sheriff’s deed was accepted in pursuance of or in lieu of the deed of the defendants, or in consummation of the contract which they had entered into; and .also the other question of fact as to what the contract was between the two parties.
    On the ,25th Jan., 1884, the jury rendered a verdict in favor of the plaintiff for $631.87. The. defendants then took this' writ of error, complaining of the charge of the Court in answering the defendant 1st and 2nd point, and also the portion of the ■charge in brackets.
    
      John S. Harding and John McGahren, Esqs. for plaintiffs in error
    argued that the purchaser of land, having paid the purchase money in full, and taken a Sheriff’s deed for it from the vendors, cannot maintain an action to rescind the contract, and recover back the price paid for the land, on an allegation that the title is defective, without proof that it is, positively bad by evidence, that there is a superior, indisputable title to the land in a third person, or party, who is asserting his rights thereto, by virtue’of such title; Ludwick vs. Huntzinger, 5 W. & S. 51; Crawford vs. Murphy, 22 Penna. 84. It has been decided in this State, that a contract for the sale of land is considered to be In Fieri, while it remains unexecuted by the conveyance; after which the purchase money may not be retained nor recovered back, but by force of a covenant or fraud, for any incumbrance, or defect of title, whatever; Lighty vs. Shorb, 3 P. & W. 447; Dorsey vs. Jackman, 1 S. & R. 42; Kerr vs. Kitchen, 7 Penna. 486. The only allegation, which would warrant the reception of evidence, as to what the contract was, or what took place between the parties, prior to the delivery of the deed, is that of fraud. The delivery of a deed is regarded as the execution and consummation of a contract; Gregory vs. Griffin, 1 Penna. 208; Wilson vs. McNeal, 10 W. 427; Wharton on Evidence, 1014; Farmers’ Bank vs. Galbraith, 10 Penna. 490; Bailey vs. Snyder, 13 S. & R. 160; Martin vs. Berens, 67 Penna. 463. After the delivery of the deed, the rights and remedies of the parties in relation to said contract, are to be determined by such deed, and the original contract becomes null and void ; Creigh vs. Beelin, 1 W. & S. 83.
    
      N. Taylor and Wm. S. McLean, Esqs., for defendant in error,
    argued: The plaintiff below brought suit to recover from the defendants the whole of the purchase money, he had paid them for land. The defendants below contended that the plaintiff accepted from them, a Sheriff’s deed of the land in question, sold as the property of John Kocher, in satisfaction of whatever understanding there may have been, between the parties in relation to the land. The plaintiff below made replication, that Kocher had no title to the land ; that the plaintiff below did not accept the Sheriff’s deed, and that, if there had been an acceptance of the same, it was induced by the fraudulent representation of the defendants. The Court properly submitted these questions to the jury. The acceptance of a deed, does not extinguish the contract, where the plaintiff has been induced to do so fraudulently ; Lee vs. Deane, 3 Wh. 316.
   The Supreme Court affirmed the decision of the Court below, on May 5th, 1884, in the following opinion:

Per Curiam.

This was mainly a question of fact. That an action of assumpsit will lie to recover back, the money paid, in the case of the refusal of a vendor to fulfill his parol agreement, to convey land, is well settled. The vendee cannot recover damages for the value of his bargain, and he did not in this case. The jury were instructed that the recovery could be for the money paid, and the expenses incurred on the faith of the bargain. It is not contended that the vendee recovered for any improper item. The question of fraud did not control the action to recover. It rested on a breach of contract. We see no error in the answers to the points, nor in the charge.

Judgment affirmed.  