The opinion of the court was delivered, October 20th 1870, by
Agnew, J. —
The principal questions in this case arise out of the special verdict, and are upon the effect of the ejectment of 1863, the estoppel alleged, and the equity of Barclay under the contract. If Barclay was a party, in fact or in law, to that ejectment, his failure to pay the purchase-money in the time allowed by the award would conclude him. He was not a party, in fact, for the ejectment was not against himself, but against others not privies to his contract. Was he a party by operation, of law ? We think not. And first he was not liable to suit, being at the time in military service; and any attempt to deprive him of his exemption by indirection must fail. The Act of 18th April 1861, P. L. 409, enacts that no “ civil process shall issue or be enforced against any person mustered into the service of this state, or of the United States, during the term for which he shall be engaged in such service, nor until thirty days after he shall be discharged therefrom. Provided, that the operation of all statutes of limitation shall be suspended upon all claims against such person during [414] such term.” This law has been held to be constitutional: Breitenbach v. Bush, 8 Wright 313; Coxe v. Martin, Id. 322. Under this act, had the writ issued against Barclay, the court would have abated it.
Now, on inspection of the praecipe in ejectment, it is evident the writ was intended to operate indirectly upon Barclay’s contract, without making him a party. This the court would not permit, because it would be an evasion of the Act of 1861. We are therefore brought to the next point, that, on the facts found in the special verdict, the device thus resorted to did not operate on the contract, for it had no effect on Barclay’s possession. The verdict finds the premises to have been in the possession of Barclay, his family being left in the actual occupancy of the whole premises, except a single room in the house, when he went into the military service. If, therefore, the purpose of the plaintiff in that ejectment was to enforce or rescind the contract, he was bound to issue the writ against Barclay, and to serve it on an adult member of his family, as provided by law. Instead of this, he issued his writ against persons neither in privity of estate nor in actual possession of the premises and representing Barclay’s title. Mrs. Anderson, one of the defendants, was but an inmate of Barclay’s family, a mere lodger, having neither privity of estate nor possession. The utmost which could be made of her relation to him, was, that as an adult member of his family, a writ against him might have been served on her. George Mickey, the other defendant, had no such possession of the premises as would make an ejectment against him alone, an equitable remedy for specific performance. The verdict finds that he occupied but a single room, for which he' paid rent; while the possession at large — that which represented the contract to be affected by the ejectment — was actually in Barclay, who was not made a party to the writ. Admitting that Mickey could be joined in the suit with Barclay, or could be returned by the sheriff as in possession of a part, under the Act of 1807, still he did not represent Barclay’s possession, nor did he represent the whole premises bound by the contract. It is not the case of an absent vendee leaving a tenant in possession, who would be bound under the Act of 1772, to notify his landlord of the service of the ejectment; but Barclay was himself in the principal possession by his family, and entitled to service on himself.
It may be conceded, for the sake of the argument, that a vendor can enforce his contract, by bringing his ejectment for a single tract, where several distinct tenements constitute the subj ect of the contract; yet, certainly he cannot enforce specific performance of the entire contract, by an ejectment against an under tenant of a single field of a tract or of a single room in a house. Specific performance of a contract of sale is a proceeding in equity which requires the object of it to be set forth fully, in order to make the decree available. A bill in [415] equity would be regarded as imperfect, which set forth a single room in a house as the subject of the contract. No decree could be made for a proper deed, or for the surrender of the possession of the entire subject, on failure to perform under such an imperfect bill. An ejectment as a substitute for a bill, would be in no better condition. The habere facias could issue only for the premises described in the writ. Then supposing the bill to describe the whole premises, but to be brought against a mere tenant of a small and insignificant part, how could a chancellor make a decree against the vendee, not a party to the bill, to operate on his contract for the whole? In neither proceeding, by bill or by ejectment, would equity suffer an unsummoned vendee to be affected by the decree or judgment in a proceeding against one who did not represent fully and truly the entire subject of the contract.
How otherwise could the sheriff give possession of the whole premises ? How could he turn out the vendee in actual possession of the premises at large, without notice of the writ, upon a judgment against a tenant of an insignificant part only ? More especially, how could this be done when the vendee was omitted purposely from the writ, in order to evade the provision in the act of 18th of April 1861 ? Barclay, therefore, not being a party to the former ejectment, in fact or in law, he is not concluded by the award in that suit. This frees the case from the rule that one verdict and judgment, in ejectment to compel specific performance of a contract of sale, is conclusive; and the case now stands as the ordinary one of a second ejectment, and the recovery depends on the contract relations of the parties. Barclay can therefore avail himself of all the facts found in the special verdict which show the true state of this contract relation, and the unlawfulness of Davidson’s entry, as a means of enforcing the contract. The verdict finds that the interest has been paid by Barclay up to October 1st 1868; the next instalment, therefore, not falling due till April 1st 1864. Davidson had no right to enter as he did in the fall of 1863; nor had he a right then to declare the contract forfeited; the contract being fully performed up to that time. For the same reason he could not declare the principal all due, which, by the terms of the contract, would not fall due until the year 1870, unless Barclay failed to pay the interest for thirty days. And even had the interest been over-due thirty days, it gave Davidson no right to rescind the contract. It gave a right to payment of the entire purchase-money, and he might proceed to enforce performance by ejectment or by bill, in which the equities of the parties could be adjudged and controlled by the court. But, as we have seen already, the ejectment of 1863 being inoperative upon the contract, and the interest having been paid up to October 1st 1863, Davidson’s entry under the ejectment was without effect, and placed him in no better position than he was before [416] upon the question of rescission. It clearly gave him no right to withhold the possession from Barclay, who was no party, and who had up to this time fully performed his contract. Nothing short of a conclusive effect given to that ejectment could protect Davidson, and that being out of the way, as we have already shown, he was bound to yield up the premises to Barclay’s demand, at least until the latter fell into arrears in payment of the interest. And here, again, Barclay is relieved, for the verdict finds that the possession or rent of the premises after the entry of Davidson was equal to the interest. Davidson, therefore, having entered before any interest was in arrear, and being in the possession of the profits of the property, equal to the interest, could claim no interest without a surrender of the possession. He had tied up his own hands, and could, in equity, claim nothing until he did equity. An additional fact is found by the jury, which strengthens Barclay’s position.
In violation of Barclay’s rights, Davidson took down Barclay’s building, which he had erected, and removed it to another lot, appropriating it to his own use. The sum thus taken out of Barclay’s pocket was $500, this being the value of the building, as found by the jury. Another consequence of these facts is, that there being no interest in arrear, and Davidson having no right, under the contract, to declare the purchase-money immediately due, and it being not payable until 1870, Barclay had nothing to tender when he brought his ejectment.
The influence of all these facts is further felt upon the question of estoppel, which is the next point to be considered. Davidson’s ejectment of 1863, was brought in violation of Barclay’s rights, no interest being due, and Barclay himself being purposely left out of the writ. When Davidson entered into possession, it was in violation of Barclay’s contract, there being no default by Barclay. His operations upon the property began, also, in violation of Barclay’s rights, by his taking down and removing buildings to the value of $500, which Barclay had erected under his contract. Barclay clearly did nothing to encourage him to do these things. He was absent in the service, and did not return home until'July 1865, Davidson, in the meantime, beginning his improvements, and having expended $4000 of their value, before Barclay’s return. So far, Davidson was not misled by Barclay, but acted on what he conceived to be the legal effect of the ejectment of 1863, which he was bound to know was issued in violation of his contract and of Barclay’s rights. The jury do not find that he was misled by any act of Barclay’s, but that he took possession and made the improvements in assertion of his claim of title, and in the belief that Barclay’s equitable title was extinguished by the ejectment. In this he was misled by himself, or those under whose advice he acted, and not by Barclay. Nor did Barclay’s [417] silence mislead. Silence estops only where it is a fraud; hut Barclay was absent in the service, and not in a position to speak out.
Then, coming down to the time of Barclay’s return, in 1865, it is not found that Barclay knew his rights, and acquiesced in the subsequent expenditure of the $2700 found by the jury as the sum expended by Davidson on the property, between the time of Barclay’s return and that of moving to open the award, which the jury find was notice to Davidson of Barclay’s unwillingness to acquiesce in that proceeding. As a matter of inference, it is even less likely that Barclay, who was absent, knew of the illegality of the proceeding to dispossess him than Davidson, who was present participating. If Davidson was honestly mistaken in his belief, it cannot be supposed Barclay knew more than he, while his moving to set aside the award is some evidence that he was unwilling to let the proceeding stand when he discovered it to be illegal. In order to make the estoppel operative, the jury should have found that, after Barclay’s return, he knew his own rights, and lay by with his knowledge. Nor is it found by the verdict that Davidson’s expenditure was induced by Barclay’s silence; while, inferentially, the greater probability is, that Davidson was proceeding merely in prosecution of his original design to build, formed and acted upon before Barclay’s return, and not from any influence arising from Barclay’s conduct after his return. The only conclusion to be drawn from the whole verdict is, that Davidson’s expenditures of money owe their origin to his own illegal proceeding, and not to Barclay’s encouragement, or his silence. There was no estoppel, therefore.
But, though not affected by an estoppel, another question arises, whether, in equity Barclay should not be subjected to terms before he can recover under the facts found by the jury. The plaintiff, Barclay, comes into court upon an equitable title, and must show his contract. Without it he has no title, for the legal title is in the defendant, Davidson. It is clear, therefore, that if there be an equity under the facts found, Barclay must do equity before he can recover.
How, then, does the case stand upon the special verdict ? Barclay being in the military service, and not liable to suit, and Davidson’s entry into possession being in violation of his contract, accompanied by the removal and appropriation of Barclay’s building to the value of $500, it is evident there would be no equity in allowing Davidson for improvements made in his own wrong, in the absence of Barclay, and while he was incapable of forbidding him. It is not a good argument, in such a case, that the improvments were valuable. Value, alone, is not the criterion of equity. The improvements being made in prosecution of his own illegal act, and against the will of Barclay, to allow him for their value, would be to adopt a principle against public policy, and. [418] against tbe just rights of Barclay. The latter might not desire, and certainly did not authorize, such improvements. For aught we can know, they were contrary to his views of the mode of improving the property to suit his circumstances, and his desired enjoyment of it. This would conflict with his dominion over it. The unmolested enjoyment of what we possess, is as much a part of the right of property, as the ownership of the title itself. To allow another to dictate its kind and mode of occupancy, is a direct interference with this right. The kind of improvement necessarily controls the mode of enjoyment.
. But as to the value added to the property after the return of Barclay, there is a difference. Though not estopped from recovery on account of ignorance, and the absence of encouragement, Barclay’s remissness in investigating the true foundation of Davidson’s possession, and right to expend money upon improvements, is a ground of equity. Delay itself, in the case of a contract which the purchaser must pursue eagerly and promptly, is a reason for controlling the performance of the bargain in equity. When Barclay returned from the service, he found that his family was out of possession, and Davidson was in, and engaged in building. He was notified, by these facts, that a change in his relation, under the contract, had taken place, and it was his duty to inquire and ascertain his rights. It is true, he might have been lulled to sleep by the fact that Davidson had recovered at law, and so far escape absolute estoppel; but still, if he possessed an equity, he was bound to make a particular inquiry into it, or subject himself to the consequences of delay. He was bound to know that delay at least, would affect his contract relation, even if not absolutely postponed. He did nothing, however, for two years. Under these circumstances, equity, would require him to make good the expenditures by Davidson, in the meantime, which had enured to the benefit of his property. But this sum being wholly unliquidated until found by a jury, and Davidson relying on his recovery in ejectment, and not on a claim to compensation for the late improvements, it made a tender before suit, unnecessary. Judgment on the special verdict can be rendered so as to compel Barclay to do equity, by paying the sum of $2700, before he can take out execution for the possession.
There is no sufficient merit in the bills of exceptions to justify a reversal of the judgment. The first three may be considered together, as involving but a single question. They amount to this — to show that Barclay left home clandestinely to avoid his creditors, and that his enlistment and whereabouts were unknown to his neighbors. But this was no answer to the plaintiff’s case, and was not material. The facts offered did not prevent Davidson from bringing his ejectment properly against Barclay himself, and serving the writ on the family, who were in the actual possession. [419] Admitting Davidson to be ignorant of Barclay’s enlistment, if it were his true and bond; fide intention to enforce performance of tbe contract, it was bis duty to make Barclay a party to tbe writ, and not to bring it against a mere lodger in tbe family, and tbe tenant of a single room. It is tbe illegality of tbe proceeding, as an equitable remedy, wbicb prevents it from being conclusive, and not the fraud of Davidson. If Davidson be entirely free from an intention to evade tbe Act of 1861, it is, then, not the less true, as a matter of fact, that Barclay was actually in tbe military service, and entitled to tbe benefit of tbe act; that be was no party, in fact or in law, to tbe ejectment, and that bis contract was actually performed up to tbe first day of October 1863, a period after the award itself. Tbe refusal to receive tbe evidence, therefore, was harmless. So the rejection of tbe offer to prove that the defendant, in that ejectment, set up Barclay’s contract in tbe trial before tbe arbitrators, did Davidson no barm, for with tbe fall of that ejectment, all that was done under it fell. Barclay being no party to it, tbe acts of- strangers to bis contract could not affect it.
Tbe admission of Barclay’s discharge was also a harmless error. There was no real question depending on the discharge or its date. It was tbe fact of Barclay’s being in the military service, and the time of bis return to Pittsburg, and not tbe fact of discharge from that service, wbicb were material; and these were proved abundantly and incontestably, independently of tbe paper, wbicb was not made until long after tbe ejectment bad been ended, and Davidson bad been in possession a year and eight months. The proof came from several witnesses having actual knowledge, whose testimony was not contradicted, that Barclay enlisted in Battery Gr, Pennsylvania Artillery; joined it in September 1862; served faithfully and continuously until June 20th 1865, without furlough or desertion, and returned to Pittsburg in July 1865. The ejectment was commenced on tbe 6th of May 1868, the award made August 4th 1863, tbe time allowed for payment October 4th 1863, and Davidson entered shortly afterward. It is evident, therefore, that tbe discharge given in 1865 was merely superfluous, and did no injury. We will not reverse for harmless errors.
For tbe same reason, tbe sixth and seventh assignments of error, as to tbe mortgage given by Davidson to the Dollar Savings Bank, are immaterial. The evidence was simply irrelevant, and unless it tended to mislead tbe jury, its admission will not be a ground of error. Irrelevant evidence received, is often a ground of error, but it is where its effect may be to prejudice tbe case in the minds of tbe jury. But its effect here, if it could have any whatever, would have been favorable to Davidson, for it tended to strengthen bis case in the minds of a jury, by showing claims against the property on part of innocent persons relying on Davidson’s title, [420] and it tended to strengthen Davidson’s position upon the question of estoppel against Barclay for his silence and the equity arising from his unreasonable delay.
Upon the whole case, finding no error in the record, the judgment is affirmed, but with this modification, that the plaintiff do pay to the defendant the sum of $2700, with interest from the day of the verdict, within six months from this date, October 20th 1870, and that the execution be stayed in the meantime.