Opinion by
This controversy in a court of equity is over the title to land. The first averment of the complainant in his bill is that he is the owner of it in fee, under a deed to him from Jane C. Yeagley, dated November 12, 1907. Following this there is an admission that in June, 1905, more than two years before, Mrs. Yeagley, through her representative, accepted the offer of Daniel Cauffiel, under whom the appellee claims, to purchase the property for $8,000, and upon the acceptance of the offer, that Cauffiel paid $100 on account of the purchase money, for which a receipt was given to him in the following form:
“Johnstown, Pa., June 18, 1905.
“Received from Daniel Cauffiel One Hundred Dollars as a payment on land and leases sold to said Daniel Cauffiel as per agreement.
“Jos. H. Berlin,
“Attorney in Fact for Mrs. J. C. Yeagley.”
On June 20, 1905, two days after the receipt was given, Mrs. Yeagley executed and tendered a deed to Cauffiel, who refused to accept it for the reason that it did not include all he had purchased. Thereupon the agent of Mrs. Yeagley offered to return to Cauffiel what had been paid on account, but the offer was. refused. True, there is an averment that Cauffiel attempted to purchase the property from Mrs. Yeagley for the purpose of defrauding plaintiff, but this was immaterial upon the question before the court below as to whether or not Cauf
Turning to the answer, there is a distinct averment that on or about June 16, 1905, Cauffiel, in an honest and legitimate manner, sent his representative to J. H. Berlin, who was acting as the duly authorized 'attorney in fact of Jane C. Yeagley, and purchased the land in dispute; that the said J. H. Berlin, acting with authority from Jane C. Yeagley, agreed to sell the property on the terms set forth in the articles of agreement, a copy of which the appellant attached to his bill, and received $100 on account of the purchase money. A further averment is that neither Cauffiel nor his representative committed any act with fraudulent intent to secure possession of the property; that the appellee is the successor to the right vested in Cauffiel to the property, and that in pursuance of said right it entered into possession of the premises and continues in possession of them by virtue of said right. It is too clear to require elaboration that this is a mere ejectment bill, and as the case hinges upon a disputed legal title, that title must be first settled in an action of law: Duncan et al. v. Hollidaysburg, etc., Iron Works, 136 Pa. 478; Saunders v. Racquet Club, 170 Pa. 265.
When the appellant took title from Mrs. Yeagley in 1907 he knew the appellee was in possession of the land under Cauffiel, who claimed an equitable title to it under an agreement made in June, 1905, with the appellant’s grantor. He therefore took title subject to any equitable estate that may have vested in
In an action of ejectment Cauffiel’s equitable title may not be established; on the other hand, it may be, and, if so, what could a chancellor then say in justification of a decree now made driving the appellee from the premises and commanding it to remove the improvements which it has erected thereon? The learned court below was compelled to say: “Until the question of title is settled, this court has no jurisdiction to grant the relief for which the complainant prays in his bill.”
Nothing said in Llewellyn v. Cauffiel, 215 Pa. 23, has any application to the fundamental question raised in this proceeding. All that was there decided, was that a right of way, which the partnership of Llewellyn & Yeagley acquired from Mrs. Yeagley, one of the partners, was not being interfered with by Cauffiel. That partnership was not in existence when this bill was filed and the right of way is not in this case. Forty-four assignments of error fail to cloud the real situation. They are all overruled and the decree below is affirmed at appellant’s costs.
Decree affirmed.