#### Gansz’s Appeal.

The vendees of land entered into an agreement to pay the vendor a sum of money on his procuring for them releases of certain outstanding titles. The vendor obtained releases for one-half the outstanding titles, and the remaining one-half was subsequently purchased by the vendees themselves. Held, that the agreement was a severable contract, that the vendor was entitled to recover from the vendees the whole of the stipulated sum less the price paid by the vendees for the outstanding titles.

[Where the creditor of a decedent’s estate does not present his claim to the administrator until the final account has been filed, two years after letters of administration have been granted, it was held, by the court below, that he would be compelled to pay the costs of audit rendered necessary by his delay, although he had no knowledge of the decedent’s death and did not see the administrator’s notice in a paper taken by him.]

Oct. 15, 1888.

Appeal, No. 20, Oct. T., 1888, of Lewis Gansz, Jr., administrator, from Ó. C. Butler Co., to review a decree dismissing exceptions to the report of an auditor on exceptions to the account of Lewis Gansz, Jr., administrator of Lewis Gansz, Sr., deceased, at March T., 1887, No. 31. Williams, J., absent.

The exceptions to the account set forth the claim of the ex-ceptant as stated in the auditor’s report. The exceptant further averred that he resided in Allegheny county and did not know of the death of Lewis Gansz, the decedent, until he saw the advertisement of the account of his administrator. He afterwards testified to this effect before the auditor, but there was no finding on the subject.

The facts appear by the following report of the auditor, E. L. Ralston, Esq. :

“The leading facts in this case are as follows: On June 4, 18 66, Archibald Blakeley made sale of a farm in Jackson township, Butler county, to Samuel Marshall and Lewis Gansz-for the consideration price of five thousand dollars. The deed is dated and acknowledged on June 4, 1866. The deed is a general warranty deed, properly executed by Blakeley and wife, and recorded. The amount of land conveyed by said deed to Marshall and Gansz is one hundred and sixty-seven acres and fourteen perches. At the time Blakeley conveyed the land, it appears that he had good title for only nine-tenths of said tract, the remaining one-tenth was outstanding, being owned by the heirs of Ellen Rosebaugh, deceased, who was one of the heirs of John Dunn, deceased. There were eight of these Rosebaugh heirs. Afterwards, on June 14, 1866, the following instrument of writing was drawn up and given to Archibald Blakeley, the vendor of the above land. It is as follows:

“ ‘ We, Samuel Marshall and Lewis Gansz, are to pay to Archibald Blakeley, Esq., the sum of four hundred and ninety dollars, with interest from this date, on his procuring and delivering to us releases from the heirs of Eleanor Rosebaugh, deceased, for the undivided one-tenth part of the farm in Jackson township, Butler county, which we bought from said Blakeley, of which farm John Dunn died seized.

*252“ *‘*From this note is to be deducted the fees of the surveyor to survey the land. And the amount of the note or obligation is to be increased or diminished whatever amount said farm may exceed or fall short of one hundred and seventy-five acres, neat measure, estimating said excess or deficiency at twenty-eight dollars per acre.’

“ This instrument was under seal, properly executed, stamped, etc., as will appear by reference to said instrument of writing, it being offered in evidence.

“ On the back of said instrument of writing is ‘made the following endorsement, signed by Archibald Blakeley:

“ ‘ 1867, Oct. 2nd, a credit given herein as of date of note for ten dollars.- Surveyor’s fee paid, and for twenty-eight dollars deficiency in survey of land; also this day, cash fifty dollars.’

“ Also the following endorsement, signed by Samuel Marshall:

“ ‘ We acknowledge to have received from said Archibald Blakeley releases from George Rosebaugh and wife, Mary Hays, Samuel Bolton and Nancy, his wife, and Samuel Meyers and Sarah, his wife, to said Archibald Blakeley, leaving one-fifth of the said one-tenth not yet released. Oct. 2nd, 1867.

“ The words ‘ one-fifth ’ is evidently a mistake^it should read ‘ one-half of the said one-tenth not yet released.’

“ It appears, from the above endorsement, that Blakeley had procured the outstanding title from four of the Rosebaugh heirs. There were eight heirs; the interests of the other four heirs Blakeley never procured. The rest of the title that remained outstanding was purchased finally by Marshall and Gansz themselves, the vendees of the above land, on June 28, 1878. For this they paid the remaining heirs of Eleanor Rosebaugh four hundred dollars and deed was made by them to Marshall and Gansz for their interest. This purchase perfected the title in Marshall and Gansz in the land.

“On March 9, 1887, Lewis Gansz, Jr., administrator of Lewis Gansz, deceased, filed his final and distribution account in the orphans’ court of Butler county. On March 18, 1887, Archibald Blakeley filed exceptions to the confirmation of said account, claiming money due and owing him on the instrument of writing above recited. ’

“ The instrument of writing or agreement upon which this claim against the estate of Lewis Gansz is made, it being entered into after the date of the deed, is a subsequent writing and must form the basis from which the auditor is to - draw his conclusions. It provides that the sum for which it is drawn may be increased or diminished as the survey of the land may determine; if said survey makes more than one hundred and seventy-five acres, said amount is to be increased twenty-eight dollars per acre for every acre the tract of land contains over one hundred and seventy-five acres; if there is less than one hundred and seventy-five acres in said tract, the amount is to be decreased twenty-eight dollars per acre for every acre of deficiency. There is no evidence before the auditor of what *253the land contains other than is shown by, the deed and the instrument of writing above recited. There were no surveyors called by either party to prove the contents of said land. On the back of the instrument of writing, above recited, was made the endorsement of credits above recited. This endorsement is in the handwriting of Judge Bredin, attorney for Marshall and Gansz, and the signature is in the handwriting of Archibald Bakeley. This is all the evidence before the auditor as to the amount of deficiency in said land. While it is not conclusive as to the whole amount of deficiency, it is the only evidence of deficiency; and, had there been a greater deficiency, it should have been shown by accountant in this case. The inference or presumption is that the land contained but one acre less than one hundred and seventy-five acres, or, in other words, the land contained one hundred and seventy-four acres. It is a fact that the deed only conveys one hundred and sixty-seven' acres and fourteen perches, but this instrument of writing having been given subsequently to the deed, the deed would not be a basis from which to compute a reduction, and therefore does not enter into the question. The auditor therefore finds that said land contained one hundred and seventy-four acres, in the absence of proof showing a further deficiency.

“ The main position taken by the accountant in regard to this instrument of writing is that it is an entire contract and that, unless Blakeley fully complies with its terms by procuring the releases named therein, he can not recover. Blakeley obtained _ releases for one-half the outstanding title, the other half he never procured and therefore he is not entitled to recover on the instrument of writing.

“ The accountant cites, in support of this position, the following cases: Shaw *v.*Lewistown and Kishacoquillas Turnpike Co., 2 P. & W. 454; Martin *v.*Schoenburger, 8 W. & S. 367.

*“*The auditor is of the opinion that the above cited cases are not in point. This is an agreement concerning real estate. Marshall and Gantz had a right to perfect their title themselves at any time, on the failure of Blakeley to do so. They had four hundred and ninety dollars, the balance of the purchase money, in their hands. They had a right to use all, or so much of said money as would make their title in the land good, and, if the costs of making good title were less than the balance of purchase money retained by them, they should have a credit, on said balance, of the amount expended, but no more. Had the vendees, Marshall and Gantz, never got all the outstanding title, Blakeley could not then recover anything on this contract; but Marshall and Gantz, now having title perfect in them, by reason of said purchase, are in the same position that Blakeley would have placed them in had he procured the title himself. Marshall and Gafitz are entitled to a credit of four hundred dollars on balance of purchase money coming to Blakeley, the amount they paid to perfect their title, and Blakeley should receive the balance left after deducting four hundred dollars.

*254“ The vendee may defalk the amount paid by him for existing encumbrances. Tod’s Adm’rw. Gallagher, 16 S. & R. 261; Erwin *v.*Helm, 13 S. & R. 165.

“ In an action on a bond given for the purchase money of real estate, it is competent for the plaintiff to prove that the defendants have purchased the outstanding title and have thereby gained a complete title to the premises. He is entitled to recover on the bond, making an allowance to the defendant for the price paid for the outstanding title, with interest and expenses. Kinley *v.*Crane, 34 Pa. 146.

“Your auditor finds that the balance on this claim of Archibald Blakeley, after deducting the credits of surveyor’s fee, ten dollars, deficiency in survey, twenty-eight dollars, and four hundred dollars paid by Gantz and Marshall for outstanding title, that the remainder thereof should be paid out of the estate of Lewis Gantz, deceased, and therefore deducts the amount due Blakeley from the total amount as shown by said account for distribution and re-states the remainder of said estate and distribution account accordingly.”

The auditor accordingly awarded to the claimant $491.05, deducted the auditor’s fee and cost of filing report from the amount in the accountant’s hands, and distributed the balance to the heirs.

Exceptions were filed by the accountant, averring, inter alia, that the auditor erred in not holding that the contract was entire and that' no recovery could be had for part performance. The eighth exception was as to the imposition of the costs upon the estate.

The opinion of the court below, on the exceptions, was as follows, by Hazen, P. J.:

“ After careful examination of the proofs in this case, we agree fully with the learned auditor in his findings of facts and conclusions of law, save only in his imposition of the costs of audit on said decedent’s estate. The exceptant, according to his own showing, was tardy in the extreme and very neglectful of his interests. He never máde known his claim, in kind or amount, or even that he had a claim, to accountant, though letters of administration were issued on decedent’s estate in Oct., 1885, and notice thereof duly published in the Democratic Herald, which exceptant admits he has taken regularly. But after accountant had settled up the decedent’s affairs, being uninformed of this claim, and that through the neglect of ex-ceptant, and had filed his final and distribution account, then ex-ceptant filed exceptions thereto and for the first time claimed payment, from decedent’s estate, of the obligation in suit. While we fully concur with the learned auditor in allowing the balance of exceptant’s claim, we consider his neglectful conduct such, under all the circumstances, as to warrant his paying the expenses of this audit, which, but for his neglect, might have been avoided. Exception number eight should be sustained, but all the other exceptions should be overruled and dismissed, and the account re-stated accord*255ing to the foregoing; and the report, with this correction, confirmed absolutely.

“And now, Oct. 24, 1887, upon due consideration, all of the exceptions to this report are overruled and same dismissed, save and except only the eighth exception, which is sustained, and the account re-stated accordingly, and the costs of this audit are placed upon exceptant, and, with this correction, this report is confirmed absolutely.”

*The assignments of error*specified that the court erred, 1, in sustaining the report of the auditor and dismissing the exceptions filed thereto by the appellant; 2, in making the decree of Oct. 24, 1887, quoting it; 3, in confirming the auditor’s report: his findings of facts and conclusions of law; 4, in its construction of the obligation of Samuel Marshall and Lewis Gansz to Archibald Blakeley dated June 14, 1866, and in holding that there was a balance of $491.05 due thereon from the appellant to Archibald Blakeley.

*L.*McQnistion, with him *K. Marshall,*for appellants.

The obligation between Marshall and Gansz and Blakeley was conditioned on Blakeley’s procuring and delivering releases. The procuring of the releases was a compulsory condition precedent to payment. In such case, it must be complied'with. Thomas *v.*Van Ness,4 Wend. 553; Bellas *v.*Hays, 5 S. & R.439; 1 Chit. PL, pp. 323>'325-6-_

In Tod *v.*Gallagher, Poke *v.*Kelly, and Kinley *v.*Crane, cited by the auditor, absolute bonds were given for the payment of the purchase money. Here the vendees took no risk, but provided against it by a conditional obligation. This distinguishes the cases from Steinhauer *v.*Witman, 1 S. & R. 438 to Wilson’s Ap., 109 Pa. 608. See, also, Lloyd *v.*Farrell, 48 Pa. 73.

*R. P. Scott,*for appellee.

In Kinley *v.*Crane, 34 Pa. 146, it is said: The defence of failure of consideration to a suit on a bond for purchase money is entirely equitable, and depends for its success upon all the equities existing between the parties. If the plaintiff had purchased such an outstanding title, it would have enured to the benefit of the defendants by estoppel, and their title would have been complete, and the prior failure of title would have constituted no defence to the action on the bond. If, then, the defendants purchase this outstanding title, it becomes united to whatever interest they acquired by the conveyance from the plaintiff, and the plain equity is that they should be allowed the full price paid for it, with the interest and expenses, which should be deducted from the amount due on the bond. This would give the plaintiff all that he is equitably entitled to, and would do exact justice to the defendants. This is the true rule. Loomis *v.*Bedel, 11 N. H. 74; Spring *v.*Chase, 22 Maine, 505 ; Lawless *v.*Collier, 19 Mo. 480; Liffingwell *v.*Elliott, 8 Pick. 455 ; 10 Pick. 204 ; Mellon’s Ap., 32 Pa. 126.

*256Oct. 29, 1888.

The vendee of land, in a suit for consideration money, may defalk the amount paid by him for existing incumbrances; but he is liable to the vendor for any balance beyond that. Tod *v.*Gallagher, 16 S. & R. 260.

Per Curiam,

We concur in the decree of the court below, since an examination of the case satisfies us that it is correct.

The decree is affirmed and appeal dismissed, at costs of appellant.

Note. — The proper practice, in presenting a claim, such as that involved in the above case, would seem to be by a petition for an auditor, and not by exceptions to the account. And, as distribution by an auditor is the method pointed out by the Acts of 1832 and 1840, and is a protection to the accountant and distributees (Moorehead’s Est., O. C., 1 Ches. Co. 435 ; Barlet’s Est.. O. C., 2 Ches. Co. 456 ; and see, also, Woodward’s Est., C. P., 2 Ches. Co. 8), it would not seem to be proper to place the costs upon the petitioner. See, also, Young’s Est., O. C., 2 Ches. Co. 117, for costs allowed a claimant petitioning for an auditor.