Kurtz v. Cummings

24 Pa. 35

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1854
• Status: Published

Opinion

The opinion of the Court was delivered by

Lewis, J.

An advertisement signed by a vendor and published in a newspaper, offering bis real estate for sale at public auction upon terms of payment therein specified, and a subsequent parol sale at such auction, without any other writing, and without the payment of the hand-money required by the terms of sale,'is not such a contract as passes an interest in the land. An action at law may be maintained on it for the recovery of damages for its breach, but no Court will decree specific performance of it. There is nothing in the transaction which supplies the place of the written evidence required by the statute of frauds and perjuries.

The purchaser, under the terms of the contract, had no right to possession without payment of the hand-money, and there is no evidence that the vendor consented to deliver possession without it. The agreement between the purchaser and the tenant, without the consent of the vendor, and without any right of possession derived from him, did not constitute an attornment in any proper sense of the term. “ An attornment shall not enure or work to pass any interest to make a bad grant good, nor to give a man a tenancy by disseisin, intrusion, or abatement:" Sheppard’s Touch. 254. The purchaser had done nothing to acquire an interest in the land, and his agreement with the vendor’s tenant gave his claim no additional validity. The Court was, therefore, right in refusing specific performance, and in leaving the plaintiff to his remedy at law for damages for non-performance. These, he has recovered under the second count in the declaration.

Judgment affirmed.