The opinion of the court was delivered, by
Sharswood, J.The master to whom these cases were referred in the Court of Nisi Prius has examined and discussed with great research and ability many interesting questions which were raised. *269It was entirely proper that he should do so,- as he could not anticipate what the judgment of the court would be. It will be unnecessary, however, to consider and decide them here, as there is one point which, in our opinion, disposes of the whole controversy.
By an article of agreement dated January 24th 1865, Samuel Wilson agreed to sell and convey to William Getty a certain messuage and tract of land in Clarion county, containing 650 acres, more or less, for the consideration of $50,000: $15,000 to be deposited in bank with deeds for the property, which was to be paid over to Wilson “ as soon as William A. Porter, counsel for the parties, pronounces the deed to be complete and perfect.” The balance of the purchase-money was to be paid in instalments, $10,000 April 1st 1865, $10,000 May 1st 1865, and $15,000 June 1st 1865. Prior to the execution of the agreement there had been deposited with Mr. Bobins, the president of the Philadelphia National Bank, a package containing a deed from Thomas Baker and wife to Peter B. Simons, a grantee named by Mr. Getty, for the tract of land in question, with various powers of attorney and certificates of search relating thereto, and also the $15,000 called for in the agreement. The vendor accordingly submitted to Judge Porter a brief of the title to the tract of land in question, which after examination he pronounced to be defective, and so informed the parties. Soon after the vendee notified the vendor that he declined to accept the property in consequence of this decision, and demanded the return of the money which had been deposited in bank.
If, upon the true construction of this agreement, Judge Porter was appointed a referee to decide whether the title was a good one, his decision must be regarded as conclusive upon the parties whether it was right or wrong. No technical phrases or set form of words is required to make a binding reference. It is sufficient if it appears that the parties mutually agreed to . submit the subject to the person or persons named: McManus v. McCulloch, 6 Watts 360. In Speer v. McChesney, 2 W. & S. 233, a person was chosen to measure a job of mason work, and the parties agreed to abide by his measurement. In Leebrick v. Lyter, 3 W. & S. 365, it was merely provided that the quantity of stone in a wall should be measured by the engineer of the canal. The only question was, who was the person intended as the referee. The gentleman named in the agreement in this ease is described as the counsel of the parties, that is of both parties. The first payment was to be made as soon as he pronounced his decision. The other payments were to follow in quick succession. The whole purchase-money was to be paid in little more than four months from the date of the contract. The vendee would have had a right, independently of any agreement, to have the title examined by his own counsel, and to decline the purchase, if it was unmarketable. *270But then he might he subject to án action for damages, or a bill in equity for specific performance, and perhaps if the title, though really defective' at the time, were perfected at any subsequent period before a final decree, he could be compelled to accept it. It did not please him to incur the risk of such delay and expense, or to be liable to be called on at some future time for this large sum of money, when the opportunity of profit, which he had calculated upon, had slipped by. There was nothing, therefore, unreasonable in such a reference. So far from it, looking at the character of the property and the terms of the contract, it was wise to provide that the question of title should be promptly and amicably settled. It was wise in the parties to make such a reference, if they could unite in the choice of a gentleman, in whose legal acquirements, experience and sound judgment they both had confidence. What was he to determine ? Whether the deed, was complete and perfect. What deed? Evidently the deed Thomas Baker and wife to Peter B. Simons, which had previously been deposited with the money to be paid over, and which was a mere escrow in the possession of Mr. Robins. Of course not merely that it was a formally drawn and properly executed deed, but that it would convey a complete and perfect title in fee simple. By a lawful deed of conveyance, in an agreement of sale, is to be understood a deed conveying a lawful or good title: Dearth v. Williamson, 2 S. & R. 498. He was not to decide whether the vendor could at some future time procure a good title, but whether a complete and perfect title could be vested in the grantee named by the vendee by the delivery of the deed then executed and delivered in escrow. Both parties contemplated a prompt determination of the question, and when it was afterwards proposed to perfect the title through judicial proceedings and a sheriff’s deed, another and subsequent deed to the one mentioned and referred to in the contract, Judge Porter very properly declined to act. He was functus officio. He had decided the only matter, which both parties had agreed to submit to him. It would contravene the whole object and intent of the contract to inquire now whether he ought to have come to a different conclusion upon the question presented to him, much less whether the title was subsequently rendered perfect. We think, therefore, that this contract was at an end when the referee named in it pronounced that the deed was not complete and perfect, and the vendee had a right to have returned to him the money which had been deposited as the first payment under it.
There are many cases in whiph equity will refuse to decree the specific performance of an agreement, which it will decline to rescind, thus leaving the parties to their legal remedies. But if a case is made out which will justify the court in declaring a contract at an end, it will in general be ordered to be delivered up *271to be cancelled. Whatever doubts may at one time have been entertained, the jurisdiction of a court of equity in such cases is now established in its fullest extent: 2 Story Eq. §§ 699, 700. Whenever a deed or writing ought not to be used, it is against conscience for the party holding it to retain it. Whether it is inequitable from fraud, accident or mistake, or it has become so from entire failure of consideration, while it exists it is always liable to be applied to improper purposes, and it may be vexatiously litigated at a distance of time when the proper evidence to repel the claim may have been lost or obscured.
Decree affirmed at the costs of the appellants.