1. Whether a contract to give a deed with "full covenants of
seizure and warranty" is answered by a deed containing a covenant
that the grantor is "lawfully seized in fee simple, and that he
will warrant and defend the title conveyed against the claim or
claims of every person whatsoever" -- there not being a further
covenant against
encumbrance, and that the vendor has
a right to sell -- need not be decided in a case where the
vendee, under such circumstances, made no objection to the deed
offered on the ground of insufficient covenants, but only stated
that he was not prepared to pay the money for which he had agreed
to give notes, handing the deed at the same time, and without any
further remark back to the vendor's agent who had tendered it to
him.
2. Where a vendor agrees to give a deed on a day named, and the
vendee to give his notes for the purchase money at a fixed term
from the day when the deed was thus meant to be given, and the
vendor does not give the deed as agreed, but waits till the term
that the notes had to run expires, and then tenders it -- the
purchaser being and having always been in possession -- such
purchaser will be presumed, in the absence of testimony, to have
acquiesced in the delay, or, at any rate, if when the deed is
tendered he makes no objection to the delay, stating only that he
is not prepared to pay the money for which he had agreed to give
the notes, and handing back the deed offered -- he will be
considered, on ejectment brought by the vendor to recover his land,
to have waived objections to the vendor's noncompliance with exact
time.
3. While it is true that in an executory contract of purchase of
land, the possession is originally rightful, and it may be that
until the party in possession is called upon to restore possession,
he cannot be ejected without demand for the property or notice to
quit, it is also true that by a failure to comply with the terms of
sale, the vendee's possession becomes tortious, and a right of
immediate action arises to the vendor.
Page 68 U. S. 275
A noncompliance with a request to pay money on the ground that
the party is not prepared to do so, and a return to the vendor
without promise to pay at a future time and without further remark
of any sort of a deed offered is a failure to comply with such
terms. And ejectment lies at once, without demand or notice, even
though the vendor may not himself have been perfectly exact in the
discharge of parts, merely formal, of his duty-such want of
formality on his part having been waived by the vendee-and, though
the vendee may have made valuable improvements on the land.
Von Phul and Gregg entered into articles of agreement on the 6th
of December, 1856, by which Von Phul agreed to sell and convey to
Gregg certain premises in Peoria, which Gregg agreed to purchase,
paying Von Phul for them $8,550 as follows, to-wit: $2,800 on the
1st of March, 1857 (which was paid), and the residue in three
payments of $1,900 each in twelve, eighteen, and twenty-four months
from the same day. Von Phul covenanted that he would convey the
premises by deed in fee simple,
"with full covenants of seizure
and warranty, on or before the first day of March, 1857," and
Gregg agreed to execute his three promissory notes (dated on that
day), each for $1,960, payable in twelve, eighteen, and twenty-four
months, and secured by a deed of trust on the land sold and
conveyed. On the 4th of May, 1860, one Purple, acting by the
request and as the agent of Von Phul, tendered a deed to Gregg and
demanded, not the
notes, but the money due on the contract
of purchase. The deed which was tendered covenanted
"That the said Von Phul is
lawfully seized of a fee simple
in the premises aforesaid, and that he
will warrant and
defend the title &c., hereby conveyed, against the claim
or claims of every person."
Gregg looked at the deed and
made no objection to it,
but stated that he was not prepared to pay the money, and handed it
back to Purple. Gregg, who was in possession, had gone into it
under the contract of purchase, and had no other right of
possession. Previous to the tender and demand, he had improved the
property and built houses on it worth from $6,000 to $7,000. Von
Phul was in Peoria while the improvements were being made. His
residence, however, was in St. Louis.
On ejectment brought by Von Phul against Gregg in the
Page 68 U. S. 276
Circuit Court for the Northern District of Illinois to recover
possession of the property, the court, upon the above facts,
decided the law to be for the plaintiff, and the defendants
excepted. The question in this Court on error was whether the court
below had decided rightly.
Page 68 U. S. 280
MR. JUSTICE DAVIS, after stating the case, delivered the opinion
of the Court:
In the view we take of this case, it is not important to
determine whether the deed tendered was such a one as Von Phul was
bound to make or Gregg obliged to receive. If the deed was justly
liable to objections, they should have been stated. Gregg is
estopped now on the most obvious principles of justice from
interposing objections which he did not even name when the deed was
tendered and the money due on the contract demanded. If the deed
was defective and the defects pointed out,
non constat but
they could have been obviated. There is nothing in the evidence
even tending to show that Von Phul did not act in good faith. The
very silence of Gregg was well calculated to influence the conduct
of Von Phul and to convince him that the want of money was the only
reason Gregg had for declining to perform the contract. And it
would be against good conscience to permit Gregg now to avail
himself of objections which his failure to make when the deed was
tendered must have induced Von Phul to suppose did not exist.
But it is said that Von Phul covenanted to make the deed on the
first day of March, eighteen hundred and
fifty-seven, when in fact it was not until
April,
eighteen hundred and
sixty. If this is so, it does not
appear how the delay has harmed Gregg. He was not asked for payment
until long after the contract had matured, and it is fair to
presume, in
Page 68 U. S. 281
the absence of testimony, that he acquiesced in the delay. At
any rate, as he made no complaint that the deed was not tendered in
season, he has waived his right to object to the irregularity. The
doctrine of estoppels
in pais, or by the act of the party,
is founded in natural justice, "and is a principle of good morals
as well as law."
"The primary ground of the doctrine is that it would be a fraud
in a party to assert what his previous conduct had denied when on
the faith of that denial others have acted. [
Footnote 1]"
No one is permitted to keep silent when he should speak, and
thereby mislead another to his injury. If one has a claim against
an estate and does not disclose it, but stands by and suffers the
estate sold and improved, with knowledge that the title has been
mistaken, he will not be allowed afterwards to assert his claim
against the purchaser. [
Footnote
2] And justly so, because the effect of his silence has
actually misled and worked harm to the purchaser. And in this case,
the silence of Gregg concludes him. He cannot now take exceptions
to a deed which he failed to perceive when it was tendered to him,
or if he knew them, failed to disclose.
But it is contended that Gregg was entitled to notice to
quit.
How far a notice to quit is necessary before an action of
ejectment can be brought has been much discussed in England. In
this country, the authorities are not uniform. In some of the
states, the subject is regulated by statute law, or by rules of
court. In New York, the question has been fully considered. The
courts of that state hold that where there is a contract of
purchase and the vendee enters into possession with the consent of
the vendor, that ejectment will lie at the suit of the vendor
without a previous notice to quit. [
Footnote 3]
Notice to quit is generally necessary where the relation of
Page 68 U. S. 282
landlord and tenant exists and no definite period is fixed for
the termination of the estate, but where a lease is to expire at a
certain time, a notice to quit is not necessary in order to recover
in ejectment, because to hold over would be wrong after the
duration of the estate was fixed and well known to lessor and
lessee. In an executory contract of purchase, the possession is
originally rightful, and it may be that, until the party in
possession is called upon the restore it, he cannot be ejected
without a demand or notice to quit. But the vendee can forfeit his
right of possession, and if he fails to comply with the terms of
sale, his possession afterwards is tortious and there is an
immediate right of action against him. [
Footnote 4] It would be an idle ceremony to demand
possession when to a previous demand for the money due on the
contract of purchase the vendee refused to respond. This refusal,
unaccompanied by any promise to pay the money at a future day, was
equivalent to a direct notice to Von Phul that Gregg declined to
execute the contract.
This action is a possessory one, and it settles nothing but the
right of possession. The equities between the parties must be
determined in another proceeding.
Judgment affirmed with costs.
[
Footnote 1]
Hill v. Epley, 31 Pa.St. 334;
Simons v.
Steele, 36 N.H. 73;
Todd v. Haggart, 22 English
Common Law 268.
[
Footnote 2]
Hill v. Epley, 31 Pa.St. 334;
Breeding v.
Stamper, 18 B.Monroe 175.
[
Footnote 3]
Smith v. Stewart, 6 Johnson 46;
Jackson v.
Miller, 7 Cowen 747;
Whiteside v. Jackson, 1 Wendell
418;
Jackson v. Moncrief, 5
id. 26.
[
Footnote 4]
Prentice v. Wilson, 14 Ill. 92;
Baker v. Lessee of
Gittings, 16 Ohio 489.
