Cook v. Trimble

9 Watts 15

• Court: Supreme Court of Pennsylvania
• Decided: September 15, 1839
• Status: Published

Opinion

Per Curiam.

The judge was doubtless moved by the equity of the demand to strain a point in'support of it; and I regret that we are unable td sustain his judgment. He seems to have rested it mainly on the position, that the conveyance was substantively án agreement which passed an equitable estate; and had the legal estate remained in the grantor, it certainly might have given a ground to enforce the consideration by an action of ejectment. The legal title is always sufficient to maintain an action at law, which chancery never enjoins in favour of a delinquent equitable owner. But, in this instance, the grantor unfortunately had no more than an equity to convey; and as all that was in him passed by the deed, he could, as the doctrine of equitable lien is out of the question, maintain an action, on the principle of Bear v. Whisler, 7 Watts 144, only on the foot of a condition; which, however, is not found to have been cheated in the conveyance. The intent to create a condition must be, not only clear, but, in a deed, expressed in apt words; and we have in this deed neither the words proviso, ita quod, sub conditione, nor any others equivalent to them. Nor áre thére any to indicate an intent to create a condition. The words “in consideration of 160 dollars and a comfortable living to be given .to the said Archibald Trimble, his wife Jane and his daughter Mary, during their natural lives, by the said Alexander Trimble,” might create a covenant; but not a condition, everi in a will, in which the intent governs so far the words ad faciendum, faciendo ea intentione, ad effectum, and some others, make a' condition. Here the living is stated to be part of the consideration; and if that were sufficient, every grantor would have, in every instance, a better security for purchase money than even an equitable lien, which has been thought to have been beneficially expunged from our jurisprudence: he would have, in truth, a legal remedy. We regret the conclusion to which these principles impel us; but where parties have not taken proper securities, it is above our power to supply the omission.

Judgment reversed.