The opinion of the court was delivered, October 20th 1870 by
Thompson, C. J. —
Two errors are assigned on this record. The first, and which relates to the effect of the action of covenant brought by the plaintiff in error, and the plaintiff below, against the defendant, in the action of ejectment subsequently brought by him, we need not discuss elaborately, as we are of opinion that whether right or wrong as to that, the learned judge was altogether right in his opinion that the facts disclosed, connected with the making of the contract, and what transpired in relation to it, did not present a case for specific execution. As a general rule, inconsistent remedies cannot exist at one and the same time, to redress a wrong, either in tort or on contract. But there are [425]*425cases, and this is one of them, in which both or either, perhaps, might be employed, and we are, therefore, inclined to think the learned judge applied the principle too broadly; but as another ground, fatal to the plaintiff’s right to recover, exists in the case, independently of the first, we will not reverse, for it would be a vain thing to send a case to be re-tried where it is apparent a recovery could not be had by the party claiming it.
On the 30th of March 1866, the plaintiff and defendant entered into articles of agreement for the sale, or, perhaps, rather for the exchange, of certain real property. The plaintiff’s lay in New Sewickley township, Beaver county, and was held by him to be worth $10,000. The defendant’s was situate in the borough of Freedom, in the same county, and was valued by him at $3500. Treating it as a sale and purchase in form, the defendant agreed to pay the plaintiff $10,000 for his property, viz.: twenty dollars in hand, to convey the Freedom property at the price or sum of $3500, and assign to him a judgment on the prothonotary’s docket, of Beaver county, which he held against one Snead, for $2000, deliver possession of the Freedom property on the 2d of April, three days after the date of the agreement, and to give bond and mortgage at that time, to secure the cash payment of the remaining $5000 required to make up the purchase-money of $10,000, agreed to be paid the plaintiff for his land, in five equal annual instalments, with interest. This contract was written and signed at the plaintiff’s residence, on the day the defendant was taken to look at the property by one Brown, who professed to act for him, and who claimed to be a licensed real estate broker, and who was, in fact, the defendant’s clergyman.
We do not mean to give an analysis of the testimony in the case in this opinion, but we have carefully considered it, and with the learned judge below, who declared it insufficient in its character to entitle the plaintiff to a specific execution of the contract, we heartily concur. I briefly notice, however, that the undisputed testimony shows that, at the date of the making the contract, the defendant was an aged man, over 75 years. His family were all gone, excepting his wife, who was very infirm, over 72 years of age, and not present to advise and consult with him about the proposed sale and surrender of their home, as provided for in the contract. On the return home of the defendant, after entering into the contract referred to, his wife, on learning what had been done, was much dissatisfied and distressed, and declared over and over again, that she would not consent to the bargain; would never sign a deed to convey away her home, and move to a distance in the country, amongst entire strangers, and that she meant to live and die in the borough of Freedom. Under these circumstances, and dissatisfied himself with what had taken place, the defendant, early the next day, before anything had been done [426]*426under the contract, excepting the payment of the hand-money ($20) by him to the plaintiff, notified the latter of his inability, unwillingness and resolution not to comply with the contract, and demanded the return of the hand-money. This the plaintiff refused, and made preparations to remove from his property, in execution of the contract, and did remove therefrom, pursuant to the agreement, and, I believe, within the time stipulated for the exchange of possessions, and afterwards, on the 16th of April, tendered a deed to the defendant and demanded a conveyance from the defendant of his property, the delivery of possession, an assignment of the Snead judgment, and bonds and mortgage to secure the $5000, the residue of the purchase-money. The defendant refused, and offered $100 to be rid of the contract, which the plaintiff refused; after declining this, and on the 2d of June the plaintiff brought an action of covenant on the contract, against the defendant. The writ issued, but nothing more was done in the case, no narr. was filed, or other proceedings had until after the death of Mrs. Neill, in the winter of 1867, when, in March of that year, the plaintiff brought this action of ejectment against the defendant, pending the action of covenant, to enforce specifically the execution of the contract, by a recovery of the Freedom property. This was of course an equitable ejectment, and as it asked specific execution of the contract, and as it was only through and by that contract the plaintiff had any right to expect a recovery, he put himself in the situation precisely, as to the principles which should govern in the contract, as if he were a complainant in a bill in equity, and was bound to present a case which, in all respects, would call on a chancellor to see executed. He could only recover by presenting a case which, in “ equity and good conscience” would entitle him to the intervention of a chancellor. This is as truly the rule in an equitable ejectment as it is in a bill in chancery, as already said. I need not quote the language of judges to prove this. I will simply cite the cases which rule it, viz.: Peebles v. Reading, 8 S. & R. 484; Tyson v. Passmore, 2 Barr 122; Brawdy v. Brawdy, 7 Barr 158; Greenlee v. Greenlee, 10 Harris 225; Dougan v. Blocher, 12 Harris 28. There are numerous other cases iterating the same doctrine.
If it be asked how the doctrine of courts of equity is to be administered in this form of action, the cases cited above show that it is to be done by a proper observance of the distinct duties of the judge and the jury. If in the opinion of the former, the facts are not such as should move a chancellor to decree specific execution of the contract, he should give a binding instruction to that effect to the jury, and withdraw the case from them; if the case should be sufficient on the testimony, then the jury should be so- instructed, and the testimony referred to them to find whether it be [427]*427true or not. The jury is not charged with administering the equities of the case further than to find the facts upon which they arise. This is clearly the doctrine asserted in Dougon v. Blocher, supra. Every element w'hich would induce a chancellor to withhold his hand, in a court of chancery, will control and move a judge in administering the equities between the parties in an equitable ejectment.
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The opinion of the court was delivered, October 20th 1870 by
Thompson, C. J. —
Two errors are assigned on this record. The first, and which relates to the effect of the action of covenant brought by the plaintiff in error, and the plaintiff below, against the defendant, in the action of ejectment subsequently brought by him, we need not discuss elaborately, as we are of opinion that whether right or wrong as to that, the learned judge was altogether right in his opinion that the facts disclosed, connected with the making of the contract, and what transpired in relation to it, did not present a case for specific execution. As a general rule, inconsistent remedies cannot exist at one and the same time, to redress a wrong, either in tort or on contract. But there are [425]*425cases, and this is one of them, in which both or either, perhaps, might be employed, and we are, therefore, inclined to think the learned judge applied the principle too broadly; but as another ground, fatal to the plaintiff’s right to recover, exists in the case, independently of the first, we will not reverse, for it would be a vain thing to send a case to be re-tried where it is apparent a recovery could not be had by the party claiming it.
On the 30th of March 1866, the plaintiff and defendant entered into articles of agreement for the sale, or, perhaps, rather for the exchange, of certain real property. The plaintiff’s lay in New Sewickley township, Beaver county, and was held by him to be worth $10,000. The defendant’s was situate in the borough of Freedom, in the same county, and was valued by him at $3500. Treating it as a sale and purchase in form, the defendant agreed to pay the plaintiff $10,000 for his property, viz.: twenty dollars in hand, to convey the Freedom property at the price or sum of $3500, and assign to him a judgment on the prothonotary’s docket, of Beaver county, which he held against one Snead, for $2000, deliver possession of the Freedom property on the 2d of April, three days after the date of the agreement, and to give bond and mortgage at that time, to secure the cash payment of the remaining $5000 required to make up the purchase-money of $10,000, agreed to be paid the plaintiff for his land, in five equal annual instalments, with interest. This contract was written and signed at the plaintiff’s residence, on the day the defendant was taken to look at the property by one Brown, who professed to act for him, and who claimed to be a licensed real estate broker, and who was, in fact, the defendant’s clergyman.
We do not mean to give an analysis of the testimony in the case in this opinion, but we have carefully considered it, and with the learned judge below, who declared it insufficient in its character to entitle the plaintiff to a specific execution of the contract, we heartily concur. I briefly notice, however, that the undisputed testimony shows that, at the date of the making the contract, the defendant was an aged man, over 75 years. His family were all gone, excepting his wife, who was very infirm, over 72 years of age, and not present to advise and consult with him about the proposed sale and surrender of their home, as provided for in the contract. On the return home of the defendant, after entering into the contract referred to, his wife, on learning what had been done, was much dissatisfied and distressed, and declared over and over again, that she would not consent to the bargain; would never sign a deed to convey away her home, and move to a distance in the country, amongst entire strangers, and that she meant to live and die in the borough of Freedom. Under these circumstances, and dissatisfied himself with what had taken place, the defendant, early the next day, before anything had been done [426]*426under the contract, excepting the payment of the hand-money ($20) by him to the plaintiff, notified the latter of his inability, unwillingness and resolution not to comply with the contract, and demanded the return of the hand-money. This the plaintiff refused, and made preparations to remove from his property, in execution of the contract, and did remove therefrom, pursuant to the agreement, and, I believe, within the time stipulated for the exchange of possessions, and afterwards, on the 16th of April, tendered a deed to the defendant and demanded a conveyance from the defendant of his property, the delivery of possession, an assignment of the Snead judgment, and bonds and mortgage to secure the $5000, the residue of the purchase-money. The defendant refused, and offered $100 to be rid of the contract, which the plaintiff refused; after declining this, and on the 2d of June the plaintiff brought an action of covenant on the contract, against the defendant. The writ issued, but nothing more was done in the case, no narr. was filed, or other proceedings had until after the death of Mrs. Neill, in the winter of 1867, when, in March of that year, the plaintiff brought this action of ejectment against the defendant, pending the action of covenant, to enforce specifically the execution of the contract, by a recovery of the Freedom property. This was of course an equitable ejectment, and as it asked specific execution of the contract, and as it was only through and by that contract the plaintiff had any right to expect a recovery, he put himself in the situation precisely, as to the principles which should govern in the contract, as if he were a complainant in a bill in equity, and was bound to present a case which, in all respects, would call on a chancellor to see executed. He could only recover by presenting a case which, in “ equity and good conscience” would entitle him to the intervention of a chancellor. This is as truly the rule in an equitable ejectment as it is in a bill in chancery, as already said. I need not quote the language of judges to prove this. I will simply cite the cases which rule it, viz.: Peebles v. Reading, 8 S. & R. 484; Tyson v. Passmore, 2 Barr 122; Brawdy v. Brawdy, 7 Barr 158; Greenlee v. Greenlee, 10 Harris 225; Dougan v. Blocher, 12 Harris 28. There are numerous other cases iterating the same doctrine.
If it be asked how the doctrine of courts of equity is to be administered in this form of action, the cases cited above show that it is to be done by a proper observance of the distinct duties of the judge and the jury. If in the opinion of the former, the facts are not such as should move a chancellor to decree specific execution of the contract, he should give a binding instruction to that effect to the jury, and withdraw the case from them; if the case should be sufficient on the testimony, then the jury should be so- instructed, and the testimony referred to them to find whether it be [427]*427true or not. The jury is not charged with administering the equities of the case further than to find the facts upon which they arise. This is clearly the doctrine asserted in Dougon v. Blocher, supra. Every element w'hich would induce a chancellor to withhold his hand, in a court of chancery, will control and move a judge in administering the equities between the parties in an equitable ejectment. Considering the circumstances surrounding the making of the contract in this case — the age of the defendant, the agency at work in pressing him into- a reluctant bargain, namely, his accepted spiritual guide 'and professed friend, who, while seemingly acting for him, was in the employ of the other party, and entitled, if successful, to large commissions from him, the fact of writings being hastily drawn up on the spot, in the absence of his wife, or any other person to advise with who might be impartial; the nature of the agreement, viz.: to surrender his home within three days, and move with his aged wife to a distant farm in the country, which he could neither work himself nor supervise others while working it for him — his undertaking to pay a large sum of money by instalments, reaching to a period beyond any reasonable probability of the duration of his own life, and the doubts which, under the testimony, would be apt to strike the mind as to the conscionableness of the contract in all its aspects, were such circumstances, we think, that no chancellor could for a moment hesitate to refuse his aid in executing it. The plaintiff was not imposed upon in regard to the action intended by the defendant, for he was, within a day after the contract, and before he had incurred the least expense or trouble on the foot of it, notified that its execution would be resisted. He had not a shadow of equity, therefore, on that ground. Nor was his delay in endeavoring to enforce specific execution, very persuasive that even he thought he could succeed in it. These and many other considerations legitimately arising out of the testimony, satisfy us that the plaintiff was not entitled to demand the specific execution of his contract with the defendant, and that the opinion of the learned judge to that effect was altogether correct. As already said, even if the learned judge had been in error in the view he took of the pending action of covenant, still he could not have, without error, made any disposition of the facts which- would have entitled the plaintiff to recover, and therefore the judgment must be affirmed. Eor any damage the plaintiff has suffered, he must proceed on his covenants for redress.
Judgment affirmed.