Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
Before WOOLLEY and DAVIS, Circuit Judges, and MORRIS, District Judge.
By a contract between Zintsmaster and Werner the former agreed to sell and the latter to buy certain lands in Florida for a consideration of $15,000, part to be paid at once and the balance by instalments in one and two years. After Werner had paid $5,400 and had refused to pay anything more, Zintsmaster tendered him a deed purporting to convey the title, and, then suing him, had a verdict and judgment for the balance of the purchase money. Werner appealed. We shall speak of the parties as they stood in the trial court.
The contract contains this provision:
"That if the said party of the second part (Werner) shall first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part (Zintsmaster) hereby covenants and agrees to convey and assure to the said party of the second part, * * * in fee simple, * * * by a good and sufficient deed, with abstract," the parcel of land described.
Declaring on this covenant, the plaintiff, in his statement of claim, said that he tendered "to the defendant a deed for the said property, said deed being in accordance with the article of agreement hereto attached, and demanded of him the payment of the balance of the purchase price, * * * which payment was refused. The plaintiff holds the said deed ready for delivery upon payment of the proper amount."
At the trial it appeared that the deed which the plaintiff had tendered the defendant and which he averred was "in accordance with the article of agreement," that is, to convey a fee simple title, did not convey such a title, nor in fact did it convey any title at all because the plaintiff was himself without title. This constituted the defendant's justification for refusing to pay the balance of the purchase money and the ground for his claimed right to rescind the contract.
Before coming to the assigned error of the trial court in directing a verdict for the plaintiff, we shall state the evidence as to the plaintiff's title which is not in dispute.
When the plaintiff contracted to sell the land to the defendant, he neither had, nor claimed to have, title. He had, however, a contract with Susan J. Vickers, the title holder, for its purchase, bearing date December 15, 1925, payment to be made by instalments at short periods. Even this contract was of doubtful validity as in it the vendor, a married woman, was not joined by her husband. The Florida boom was on and this was a boom contract entered into with the hope that the land would be passed along from buyer to buyer at prices higher and higher. It was passed, superficially, from the plaintiff to the defendant by the contract in suit. Then the boom broke.
At or about the time the plaintiff demanded the balance of the purchase price, he obtained a deed for the property from Mrs. Vickers. As her husband did not join, the deed was void and the title remained in her. Carn v. Haisley, 22 Fla. 317. Then the plaintiff -- still with the title in Mrs. Vickers -- tendered to the defendant a deed of his own based upon Mrs. Vickers' void deed, which, naturally, the defendant refused to accept. At the trial the plaintiff offered in evidence an abstract of the title, the unrecorded void deed of Mrs. Vickers to himself, and his own ineffective deed to the plaintiff as proof of his ability to perform his covenant to convey a fee simple title to the defendant. The court, with the title still in Mrs. Vickers, directed a verdict for the plaintiff "conditioned," however, "that the abstract which the plaintiff has tendered here during this trial be brought down to date to show the recording of the deed from Susan J. Vickers to A. P. Zintsmaster (the plaintiff), being the deed which was offered in evidence in this case as plaintiff's Exhibit No. 1 (the deed mentioned above), and this abstract when brought down to date, together with the plaintiff's deed tendered to the defendant in this case, will be filed in the Clerk's office, to be taken out by the defendant upon payment of any judgment that may be entered upon the verdict here recorded."
This was not an inadvertent direction on the part of the learned trial judge for he was, of course, aware of the legal effect of the non-joinder of Mrs. Vickers' husband in her deed to the plaintiff and the legal effect of that non-joinder on the plaintiff's deed to the defendant. He directed the verdict on authority of Loud v. Pomona L. & W. Co., 153 U.S. 564, 14 S. Ct. 928, 38 L. Ed. 822, a case that very properly arrested his attention, and on his construction of the contract in suit in the light of the law of that case, to which we shall advert presently.
On May 13, 1929, the day the case was tried, Mrs. Vickers -- this time her husband joining -- executed a new deed for the property to the plaintiff which, together with the deed from the plaintiff to the defendant, were, after verdict, lodged with the clerk for delivery to the defendant on his satisfying the judgment. This second Vickers deed was executed at a point distant from Pittsburgh, the place of trial. Whether it was delivered before or after verdict on May 14, does not appear. Yet certain it is that it was not put in evidence before verdict and that its validity has never been passed upon. Nor was its existence known to the court, jurors, or the defendant when the verdict was directed and rendered. Thus it is clear that the verdict was rendered without evidence that the plaintiff had offered to perform, or could perform, his undertaking to convey a fee simple title to the defendant, whom he was suing for the balance of the purchase money. The judgment which in terms followed the verdict has been referred to as a "conditional" judgment, that is, a judgment whose enforcibility, if not its validity, is conditioned on the plaintiff's perfecting, or, rather, acquiring, title to the property.
The action of the learned trial judge in directing such a verdict and entering such a judgment is not so unusual as at first it would seem for he was following the case of Loud v. Pomona Land & Water Co., as he interpreted it. That decision on the facts of that case is law. If the law of that case is applicable to the facts of this case, his action was right. If, however, that case is distinguishable on the facts from the case at bar then, ...