The opinion of the court was delivered,
by Lowrie, C. J.
It requires an unusual share of equanimity to be able to regard with contentment the immense amount of litigation that has grown out of the transaction on which this suit is founded. An approximate conception of its magnitude may be formed from the records given in evidence in this case, in connection with the facts appearing in several reported cases: 2 Harris 342; 12 Id. 28; 3 Casey 418. It is not at all creditable to the parties concerned.
When Mr. Veech bought the land in controversy, he did it as agent of the creditors of Foster, in order to secure their claims. He therefore held the title in trust for them. Herein he was trustee in the strict sense of the term. The agreement to let Blocher, Shoemaker & Taylor have the title, on their securing [373]*373these creditors, if we regard it as valid in equity, did make him also trustee for Blocher, Shoemaker & Taylor; but this was only by construction, in order to allow a remedy in equity so as to get the legal title, and not at all in the strict sense of the term. The purchase was with the money of the creditors, with an agreement to sell to Blocher, Shoemaker & Taylor, not for the amount of Veech’s bid, but for the amount of the claims of his clients; and Veech did not thereby become the trustee of Blocher, Shoemaker & Taylor in any other sense than as vendors by articles of agreement are usually called trustees, for their vendees, of the legal title. This relation was somewhat loosely expressed by Mr. Justice Bell, 2 Harris 342; but it is very accurately expressed by Lewis, C. J., in 3 Casey 425. The strict relation of Mr. Veech to Blocher, Shoemaker & Taylor is that of vendor, and we must follow the history of that relation.
Veech held the legal title, and Blocher, Shoemaker & Taylor held the equitable title, as vendor and vendees. The legal title passed from Veech to Pauli, who conveyed to Gaddis and Townley, who on the 3d May 1854 conveyed to Hill, the defendant below.
The equitable title passed by sheriff’s sale from Blocher, Shoemaker & Taylor to E. P. Oliphant, who conveyed to Turbett, who conveyed to Hersey, who conveyed to the Fayette Manufacturing Company, whose title passed by sheriff’s sale to Eldred, who conveyed to Jones, who conveyed, 28th January 1854, to Hill, the defendant below.
Thus Hill shows a regular chain of title to both the legal and the equitable estates. But when Hersey bought from Turbett, 22d January 1851, he gave Turbett a mortgage on the property to secure $10,000, and to October Term 1854 suit was brought on this mortgage and judgment obtained, and his title was sold by the sheriff, and conveyed to F. H. Oliphant, December 8th 1856. That judgment was afterwards reversed, because it ought not to have been entered until after the amount due on the legal title had been paid: 3 Casey 418; but that reversal did not affect the sale of the land; and therefore the sale cut off the equitable title held by Hill, and passed it to F. H. Oliphant, subject, however, to the legal title acquired by Hill after his mortgage was given; if, in fact, that equitable title had then any valid existence. Of this we must now inquire.
In 1847 Pauli was in possession under his title from Veech, and Blocher, Shoemaker & Taylor brought an action of ejectment (No. 92, March Term 1847) to recover the possession, and on the 30th of September 1847 recovered a verdict, subject to the payment of, and on condition that they should pay to Pauli the sum of $8500, with interest from that date and costs, within three years, and that if not paid, judgment should be entered in favour of Pauli. This condition was hot performed, and on the [374]*3744th October 1850 judgment was entered in favour of Pauli. Did this annul the equitable title ? We think it did.
We know that Chief Justice Gibson has said that the Act of 21st of April 1846 applies only to the case of ejectment by a vendor and a verdict in his favour, with time to vendee to redeem : 6 Barr 390. And, as the words of the wise are very naturally taken on trust when duty does not require us to test them, we find his saying several times quoted, without question: 3 Casey 428, 468; 7 Id. 435. But in no instance where this has been said, was it a point before the court. Always it is a mere opinion by the way. And the very reason that is given for it shows its erroneousness — “for in no other (case) can time be of the essence of the finding.” This shows that the learned chief justice had not thought of the case of a vendor in possession and refusing to perform, where the verdict would regularly be against •him, with condition that the ve.ndee shall perform in a time ■named. There time is manifestly of the essénce of the finding. ,And the reason is good for nothing in the face of the fact that here we have a verdict, in an action by the vendee, in which time is an essential element. And in the latter part of the act, the case of ejectment by vendee against vendor, and a verdict allowing time, is provided for. The thought intended to be expressed is rather that the vendee alone needs a verdict on time, than that .he alone can be defendant in such a case. He may have it as plaintiff: 3 Casey 302; 1 Id. 361.
The Act of 1846 rescinds the contract on the failure of the vendee to perform the conditions of the verdict and judgment, or confessed judgment, and makes the judgment conclusive between the parties, in all actions of ejectment to enforce the payment of the purchase-money, wherein time becomes of essence in the finding : that is, whenever the jury have set the proper time for performance as part of their verdict. Now payment of purchase-money is the usual form of specific performance by the vendee; but it is far from being the only form; for his contract may •require payment in goods, or stocks, or houses, and surely the law was intended for such cases also; and therefore we feel that ■we ought to read “specific performance,” instead of “payment .of purchase-money,” if we would not stick in the bark of the statute. This is necessary- also for the sake of equality; for we cannot suppose that the legislature intended that the judgment ■in the same controversy should be conclusive if one party be the plaintiff, and not so if the other be.
See how it would work. It is admitted that if the vendor be plaintiff, he is concluded by the judgment, and must convey according to the terms of the verdict, and the defendant must pay according to it. But suppose the vendor has retained or resumed the possession of the land) then the vendee will be plaintiff, and [375]*375the verdict will be in his favour on condition that he pay in a given time. If we assume that this is not conclusive, the case will stand thus: the vendor’s hands are effectually tied until the time is out, and then the vendee may say that he will not perform, because the judgment is not conclusive. This would be to make the whole proceeding absurd. It would be declaring the judgment effectual if the plaintiff chose to accept it, and if not, it was no judgment at all for the matter contested, but only for the costs.
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The opinion of the court was delivered,
by Lowrie, C. J.
It requires an unusual share of equanimity to be able to regard with contentment the immense amount of litigation that has grown out of the transaction on which this suit is founded. An approximate conception of its magnitude may be formed from the records given in evidence in this case, in connection with the facts appearing in several reported cases: 2 Harris 342; 12 Id. 28; 3 Casey 418. It is not at all creditable to the parties concerned.
When Mr. Veech bought the land in controversy, he did it as agent of the creditors of Foster, in order to secure their claims. He therefore held the title in trust for them. Herein he was trustee in the strict sense of the term. The agreement to let Blocher, Shoemaker & Taylor have the title, on their securing [373]*373these creditors, if we regard it as valid in equity, did make him also trustee for Blocher, Shoemaker & Taylor; but this was only by construction, in order to allow a remedy in equity so as to get the legal title, and not at all in the strict sense of the term. The purchase was with the money of the creditors, with an agreement to sell to Blocher, Shoemaker & Taylor, not for the amount of Veech’s bid, but for the amount of the claims of his clients; and Veech did not thereby become the trustee of Blocher, Shoemaker & Taylor in any other sense than as vendors by articles of agreement are usually called trustees, for their vendees, of the legal title. This relation was somewhat loosely expressed by Mr. Justice Bell, 2 Harris 342; but it is very accurately expressed by Lewis, C. J., in 3 Casey 425. The strict relation of Mr. Veech to Blocher, Shoemaker & Taylor is that of vendor, and we must follow the history of that relation.
Veech held the legal title, and Blocher, Shoemaker & Taylor held the equitable title, as vendor and vendees. The legal title passed from Veech to Pauli, who conveyed to Gaddis and Townley, who on the 3d May 1854 conveyed to Hill, the defendant below.
The equitable title passed by sheriff’s sale from Blocher, Shoemaker & Taylor to E. P. Oliphant, who conveyed to Turbett, who conveyed to Hersey, who conveyed to the Fayette Manufacturing Company, whose title passed by sheriff’s sale to Eldred, who conveyed to Jones, who conveyed, 28th January 1854, to Hill, the defendant below.
Thus Hill shows a regular chain of title to both the legal and the equitable estates. But when Hersey bought from Turbett, 22d January 1851, he gave Turbett a mortgage on the property to secure $10,000, and to October Term 1854 suit was brought on this mortgage and judgment obtained, and his title was sold by the sheriff, and conveyed to F. H. Oliphant, December 8th 1856. That judgment was afterwards reversed, because it ought not to have been entered until after the amount due on the legal title had been paid: 3 Casey 418; but that reversal did not affect the sale of the land; and therefore the sale cut off the equitable title held by Hill, and passed it to F. H. Oliphant, subject, however, to the legal title acquired by Hill after his mortgage was given; if, in fact, that equitable title had then any valid existence. Of this we must now inquire.
In 1847 Pauli was in possession under his title from Veech, and Blocher, Shoemaker & Taylor brought an action of ejectment (No. 92, March Term 1847) to recover the possession, and on the 30th of September 1847 recovered a verdict, subject to the payment of, and on condition that they should pay to Pauli the sum of $8500, with interest from that date and costs, within three years, and that if not paid, judgment should be entered in favour of Pauli. This condition was hot performed, and on the [374]*3744th October 1850 judgment was entered in favour of Pauli. Did this annul the equitable title ? We think it did.
We know that Chief Justice Gibson has said that the Act of 21st of April 1846 applies only to the case of ejectment by a vendor and a verdict in his favour, with time to vendee to redeem : 6 Barr 390. And, as the words of the wise are very naturally taken on trust when duty does not require us to test them, we find his saying several times quoted, without question: 3 Casey 428, 468; 7 Id. 435. But in no instance where this has been said, was it a point before the court. Always it is a mere opinion by the way. And the very reason that is given for it shows its erroneousness — “for in no other (case) can time be of the essence of the finding.” This shows that the learned chief justice had not thought of the case of a vendor in possession and refusing to perform, where the verdict would regularly be against •him, with condition that the ve.ndee shall perform in a time ■named. There time is manifestly of the essénce of the finding. ,And the reason is good for nothing in the face of the fact that here we have a verdict, in an action by the vendee, in which time is an essential element. And in the latter part of the act, the case of ejectment by vendee against vendor, and a verdict allowing time, is provided for. The thought intended to be expressed is rather that the vendee alone needs a verdict on time, than that .he alone can be defendant in such a case. He may have it as plaintiff: 3 Casey 302; 1 Id. 361.
The Act of 1846 rescinds the contract on the failure of the vendee to perform the conditions of the verdict and judgment, or confessed judgment, and makes the judgment conclusive between the parties, in all actions of ejectment to enforce the payment of the purchase-money, wherein time becomes of essence in the finding : that is, whenever the jury have set the proper time for performance as part of their verdict. Now payment of purchase-money is the usual form of specific performance by the vendee; but it is far from being the only form; for his contract may •require payment in goods, or stocks, or houses, and surely the law was intended for such cases also; and therefore we feel that ■we ought to read “specific performance,” instead of “payment .of purchase-money,” if we would not stick in the bark of the statute. This is necessary- also for the sake of equality; for we cannot suppose that the legislature intended that the judgment ■in the same controversy should be conclusive if one party be the plaintiff, and not so if the other be.
See how it would work. It is admitted that if the vendor be plaintiff, he is concluded by the judgment, and must convey according to the terms of the verdict, and the defendant must pay according to it. But suppose the vendor has retained or resumed the possession of the land) then the vendee will be plaintiff, and [375]*375the verdict will be in his favour on condition that he pay in a given time. If we assume that this is not conclusive, the case will stand thus: the vendor’s hands are effectually tied until the time is out, and then the vendee may say that he will not perform, because the judgment is not conclusive. This would be to make the whole proceeding absurd. It would be declaring the judgment effectual if the plaintiff chose to accept it, and if not, it was no judgment at all for the matter contested, but only for the costs.
Moreover, when the vendee sues in ejectment on a mere agreement to sell, and a preliminary tender is not required by law, the case is almost sure to become an action “to enforce the payment of purchase-moneythe defendant, the vendor, becoming the real actor in demanding payment as a condition precedent to the delivery of the possession, and then the plaintiff is put under proper conditions, and the time fixed for payment by the jury “becomes of essence in their finding.” When Chief Justice Gibson- said that the Act of 1846 applied only where the vendor sues, he was showing that it did not apply in an action of ejectment on a constructive mortgage; and what he meant to say, therefore, was that it applied only between vendor and vendee, and not between mortgagor and mortgagee: Brown v. Nickle, 6 Barr 390. His remark was more special than he intended. Stated generally, as we have suggested, its logical fitness is manifest.
But the case of the defendant below is still further fortified. Yeech brought ejectment against his vendees, Blocher, Shoemaker and Taylor, to enforce the contract, and in June 1844, they confessed judgment in his favour, to be released on payment within a year., If the entry of this confession on the record had been perfect it would have operated, on non-performance, as a complete bar to the equity, as an agreement or confession of record, independent of any statute, as was decided in Gable v. Hain, 1 Penn. Rep. 264. But it was so defectively entered that it could have no such force as a record.
Still it was a judgment in favour of the vendor, and on hab. fac. possession was delivered to him under it; and since then, on the 4th of September 1861, pursuant to our suggestion, 3 Casey 427, the defect of the record has been amended so as to show the time fixed for payment. And this brings us to another part of the Act of 1846, which provides that in case of all such conditional judgments entered since 5th of May 1841, the defendant shall have two years to commence an action to enforce his contract, and that the conditional verdict and judgment entered in such action shall be conclusive on the parties.
The court below was requested to say that this judgment, in connection with the first, and with the Act of 1846, was a con-[376]*376elusive bar to tbe equitable title on which the plaintiff relies. This question was reserved, and afterwards decided in favour of the plaintiff. We think it ought to have been decided in favour of the defendant. The two judgments together are a valid bar under the last part of the Act of 1846; and the second alone is a valid bar under the first part of the act. We need not say that the first judgment had any effect upon the title. Perhaps it was too defective for this. But still it was a fact, a judgment confessed with oondition, of which time was an essential element. And for this fact, the law provides that there shall be a further action, which shall conclusively decide the rights of the parties. That action was brought and decided, and it is a conclusive bar to the claim set up here.
But besides arguing against these views, the plaintiff seeks to evade them by oral testimony that there was an actual delivery of the deed by Veech to Blocher, Shoemaker & Taylor in 1842, though Mr. Veech testifies that he did not deliver it. The court left this fact to the jury, and they found the delivery; and the defendant assigns for error, that the question was improperly left to the jury. We think it was.
It is very strange that such a question should be raised after nearly twenty years’ delay, and after so much litigation. Veech brought an action of ejectment in 1843 to enforce specific performance of the parol contract; and this involves the allegation that the contract had not been executed by the delivery of the deed. And the vendees confessed a judgment, which involves an admission of the same allegation, and they also specially stipulate that, on payment, “ the deeds now made shall be given up,” which certainly means that then, June 1844, they had not been delivered. And in 1847 the vendees sued and got a conditional judgment for specific performance, and this involves the same allegation on their part, and a judgment that it was true. There are, therefore, two judgments between the parties, founded upon and establishing the fact that the deed was not delivered, and the plaintiff, claiming under them, is estopped from denying it. And this second judgment conclusively shows what was then due, and certainly we are not to have another action of ejectment, to try whether that judgment has been satisfied. The’ judgment proves that it was not paid in October 1850, and there is no pretence of payment since.
But here appears a very remarkable proceeding, which is set up to evade the bar of the records already recited. Pending the action No. 92 March Term 1847, by Blocher, Shoemaker and Taylor to enforce the specific performance of their purchase, their title was sold by the sheriff on a judgment of Ewing against them, and purchased by E. P. Oliphant. He got his deed twenty-two days after the conditional verdict was entered. He there[377]*377fore purchased subject to the pending action, and chargeable with all its efficient operation upon the title. The action must go on, and did go on to its termination, without suffering any diminution of its efficacy by reason of his intervention as purchaser. Having purchased, he ought to have intervened to assert his rights in the pending action. It resulted in a decision that bound his title, by declaring that it should be complete and perfect, if within three years he should pay to Pauli the sum of $8500 and interest, and that if he did not, judgment should be entered in favour of Pauli, and in bar of the equitable title.
He did not intervene, and paid no attention to that important proceeding; but, in November 1847, shortly after the verdict in the case just mentioned, he instituted an independent action of ejectment against Pauli, and obtained a verdict and judgment in February 1849. This is very strange, and quite unaccountable. During this time the period allowed in the former case for the payment of the purchase-money continued to run, and Oliphant still paid no attention to that judgment or final decree in equity upon his rights. The period of redemption of the equitable title expired, without the payment required by the decree; and on the 4th of October 1850, a judgment was entered in favour of Pauli, which, by the very terms of the Act of 1846, was conclusive upon the parties, and of course upon their primes in estate, and operated as a rescission of the contract that constituted the equitable title.
Now what effect could Oliphant’s judgment in February 1849 have upon the final decree upon his title entered in October 1850? Manifestly none at all. Even if Oliphant had taken" possession by execution under his judgment, it would not have relieved him from the duty of payment according to the terms of the prior judgment or decree in equity. Possibly his judgment might have been of some greater value to him, if he had intervened in the other case, and used his judgment as a means of preventing the final judgment or decree of 4th October 1850. But he did not intervene and did not perform the decree in his favour, and the alternative decree or judgment was entered against him. It is the last decree upon the title, and is quite a. regular proceeding, and sweeps away all prior and less efficient controversies and judgments, and especially the very anomalous proceeding of Oliphant against Pauli.
While Gaddis and Townley were the owners of the legal title,' in 1853, they recovered a verdict and judgment in ejectment' against the then owners of the equitable title in the United States Circuit Court; but even if this could have any efficacy under our Act of 1807, it could not displace the equitable title, because in that court the equitable title is not regarded in ejectment. It [378]*378shows where the legal title then was, but decides nothing concerning the equitable title.
In wliat we have now said we have very carefully expressed the law of this case; and yet we do not feel sure that we have arrived at the exact justice of the case. The parties must have fallen into a very selfish and uncandid disposition towards each other, else they could not have fallen into so much litigation. This disposition naturally tends to complicate the truth and to hide it from judicial investigation, and thus to produce an untrue result. We could have been much more sure of the truth in this case, if the parties had been less litigious or more regular in their litigation. Possibly the present plaintiff has very innocently purchased a place in this long-protracted strife; if so, it is much to be regretted.
Judgment reversed, and judgment on the reserved points in favour of the defendant below with costs, and record remitted.