Elliott's Appeal

3 Watts & Serg. 449

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1842
• Status: Published

Opinion

The opinion of the Court was delivered by

Rogers, J.

The testatrix, Mary Elliott, having devised certain real estate to her son, David Elliott, and an adjoining tract of woodland to her daughters, Margaret, Martha, and Sarah intermarried with Cadwallader Jones, empowers her executors, if they and the heirs can agree, and they think it most to their advantage, to sell the said land, and make a sufficient deed of conveyance to the purchaser. . Without any previous consultation, so far as appears, the surviving executor entered into an agreement for the sale of the whole tract, including the 106 acres devised as aforesaid, with a proviso that the other parties in interest should join in the conveyance. In consideration thereof, the purchaser covenants to pay the vendor $27 for each and every acre, neat measure, the same to be surveyed by a competent surveyor, chosen by the parties before the execution of the deed. They further agree as to the time and manner of paying the purchase money. The devisees, Margaret and Sarah, and Cadwallader Jones her husband, Martha being dead, assent to the sale in the following words: “We, Margaret Elliott, and Cadwallader Jones, and Sarah Jones, wife of the said Cadwallader, hereby assent and agree to the within and foregoing article of agreement, and all the covenants and provisions therein mentioned; and we do covenant and agree to join in executing a deed, on or before the 1st day of April next, with David Elliott to Samuel Zeigler, agreeably to the terms and conditions of said- article of agreement.” ' * ■

The property, it must be observed, is sold by the acre, and the purchaser agrees to pay, instead of a sum in gross, $27 for each and every acre, without any discrimination whatever as to its value, arising either from situation or quality, or taking into consideration whether the same is arable, meadow, or woodland. With the agreement before them, (for their assent is endorsed on the article), the appellees consent to the sale for the price stipulated, and bind themselves to perform all and singular the covenants and provisions therein mentioned. And in consideration thereof, they agree to join in executing a deed, agreeably to its terms and conditions. Unless otherwise informed by the vendor, in whom they would naturally place the utmost confidence, they were warranted in believing that for each and every acre of land they held, they were entitled, by the express terms of the contract, to the sum of $27. And if another construction was intended to be given to the agreement, it was the duty of David to explain it to them fully; for who can say that, if they had been informed in time of the version which is now attempted to be given to the contract, they would have-assented to the sale. The vendor cannot complain, if we hold him to a course of conduct in accordance with good faith and fair dealing. It was his duty to have stated to them explicitly, that as his part was the most valuable, he should expect to be paid out of the purchase money, in proportion to its value. We cannot fairly suppose that the price per acre, (as is sometimes the case), was merely a mode of ascertaining the aggregate amount of the purchase money. It would rather appear, (and this, we think, is the most reasonable view of the transaction), that the agreement was made to assume that form in order that, in a settlement between the parties, they might know with reasonable certainty what each was entitled.to receive. If the appellees had been awai’e of the construction of the contract now attempted, they might, and probably would have refused to confirm the contract. 1st, Because of the inadequacy of the price; and 2dly, even that price was uncertain, requiring, as it must, a subsequent valuation of the respective shares, so as to adjust their relative value. This effect is so natural, that we are not to suppose that they would be uninfluenced by it, unless there was some proof that they knew precisely the situation in which they were placed.

The testatrix seems to have had an eye to the sale of the land as one tract, under the belief, no doubt, that it'would enhance the value; and it is very likely that this reason operated on the vendors and the vendee. For we can readily understand that the value of a tract destitute of wood, is much increased by joining to it a tract chiefly valuable on account of its timber, and vice versa. They will usually, as is well known, command a much greater price than if sold in separate parcels. The property was used by the testatrix as one tract, and the improvements, of course, would be made with a view to its being one farm, which would be an additional reason for selling .it together. If this be so, David has lost nothing. On the contrary, he has effected a sale of his own portion, for a price greater than otherwise could have been obtained for it. And as, therefore, the sale was mutually beneficial, the appellant is deprived of all just cause of complaint.

Decree affirmed, with costs.