Herrod v. Blackburn

56 Pa. 103, 1867 Pa. LEXIS 246

• Court: Supreme Court of Pennsylvania
• Decided: November 4, 1867
• Status: Published

Opinion

The opinion of the court was delivered, November 4th 1867, by

Strong, J.

The argument of the defendant below rests upon a misapprehension of the decisions cited by him, and of the reasons why a vendee under articles of agreement for the purchase and sale of land is sometimes permitted to withhold the purchase-money, notwithstanding his covenant to pay. When the subject of th.e contract is the land itself, the purchaser has a right to a title to it clear of all defects and encumbrances, in the absence of any stipulation to the contrary, and hence when called upon for the price, he may defend by showing that the title offered is defective. In such a case he does not get what he bargained for, and what the vendor covenanted to give. There is a failure in whole or in part of the consideration for his own engagements. But when, as in this ease, a vendor has bound himself to convey, not the land, but his right, title and claim to the land, there is no implication of a covenant that he has a good title. When, therefore, he conveys all his claim whatever it may be, he gives to the vendee the subject of the contract, and there is no failure of consideration for the vendee’s promise to pay. It would be absurd to hold that there is no difference in legal effect between a cove nant to convey a tract of land and a covenant to convey the covenantor’s right, title and claim to it. The difference is too well understood to be denied. Imperfect titles everywhere abound, and they are the subject of sale. We have equitable titles, conflicting equities, tax titles not consummate and many others. It would be a novelty were we to decide that a contract to convey one of these is an engagement to assure to the vendee whatever titles, legal or .equitable, there may be outstanding in others, equivalent to a warranty against the world. A vendee may certainly bargain for a title to be at his own risk, and this he does when he buys, not the land, but a title or claim to it.

It follows that the court below was right in answering the defendant’s points as they were answered, and that the admission of the evidence complained of in the 4th and 5th assignments of error, even if erroneous, was not hurtful to him.

Judgment affirmed.