Sanders v. Bryer

• Decision Date: 04 September 1890
• Parties: SANDERS v. BRYER et ux.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

152 Mass. 141

25 N.E. 86

SANDERS v. BRYER et ux.

Supreme Judicial Court of Massachusetts, Essex.

September 4, 1890

COUNSEL

Wm.

H. Niles and George J. Carr, for plaintiff.

Benjamin N. Johnson, for defendants.

OPINION

DEVENS J.

The only exceptions insisted on are to the refusals of the court to rule that the bill could not be maintained upon the evidence, and that, if entitled to a conveyance, the plaintiff is obliged to pay interest on the money tendered from the time of the tender. It is contended that the description of the premises in the contract is indefinite and is not aided by evidence. The description is: "One one and one-half story frame dwelling-house with barn and outbuildings, and all land now being used in connection therewith, being about seven acres, more or less situated on Central street, in Saugus Center, in said county of Essex." In the bill, the premises are particularly described, with the allegation that they are the same described in the agreement by the words which are set forth alone. The answer does not deny this. The evidence with regard to the occupation and the tender refers to the premises described in the agreement. We see no ground for this objection. The agreement to convey is inserted as one of the provisions of a lease of the premises from the defendants to the plaintiff, and the defendants contend that the plaintiff lost his right to a conveyance by breaking covenants of the lease not to commit waste, and not to underlet the premises. The court might well have found upon the evidence that there had been no substantial breach of covenant by the plaintiff. It could not have found on the evidence that there was any breach of covenant or condition of which the defendants could avail themselves after tender of payment, under the agreement by the plaintiff. The whole evidence showed that the plaintiff was entitled to relief. The remaining exception is to the refusal of the court to add interest to the $1,500 to be paid by the plaintiff upon specific performance by the defendants of their contract by a conveyance of the premises. The lease of the premises from the defendants to the plaintiff was for three years, and contained the following provision: "It is also a condition of this lease that said lessor shall have the right to purchase said premises any time within three years from the date hereof, for the sum of fifteen hundred dollars." The lease was dated October 29, 1884 and on the 27th of October, 1887, the plaintiff, according to his own testimony, "offered and tendered" to the defendant Mrs. Bryer the sum of $1,500, at Boothbay, in the state of Maine, and demanded a conveyance of the premises described, which the defendant refused. "Thereupon the plaintiff deposited said sum of $1,500, to his own credit, in a bank near said Boothbay," (where defendant was then residing,) where said money remained a week or so, and was afterwards sent to him by express to Lynn, Mass., according to his directions. The plaintiff further testified that, shortly after making such tender, he invested said $1,500 in his business, and that, while in his business and other investments he had said amount of $1,500, so that he could have paid said sum to the defendants for a conveyance of said real estate whenever they should see fit to make such conveyance, or in case of a decree in his favor, he had not deposited or set apart or paid into court said sum of $1,500, or placed said sum in any way at the disposal of the defendants. Although the plaintiff has been in possession of the premises up to the time of the decree rendered, he has paid no rent since November 1, 1887, and has enjoyed the rents and profits since that time. He claims the right so to do, without any accounting therefor, and also to be entitled to a conveyance on payment of the sum of $1,500, without any interest thereon. What the value of these rents and profits may be does not clearly appear, but it may fairly be assumed that they exceed the amount of legal interest on $1,500, as the rent of the premises reserved in the lease was $100 a year, and the plaintiff had made improvements thereon which rendered them more valuable for the uses to which he put them.

The question whether a vendee who has complied with his contract for the purchase of a parcel of real estate in offering to pay the purchase money at the time fixed therefor is entitled to the rents and profits thereof may arise in two ways,--where he is not in possession of the premises; and where, as in the case at bar, he is in possession. But in either case, if he elects to treat the premises, and thus the rents and profits, as his own, it would not seem reasonable that he should treat the purchase money also as his own, deal with it as such, derive a profit therefrom, and still be permitted to deny the claims for interest thereon. Even if he holds himself ready to obtain and pay the money when a conveyance is tendered, if he desires a decree which shall treat the land as his as of the date of the day when he made his offer of payment, the money should be treated as belonging to the vendor as of the same date. The vendee cannot be entitled to the use of both the land and the money, which is the consideration to be paid for it. "The act of taking possession," it is said, in Sugden on Vendors, (volume 2, 7th Ed., p. 797,) "is an implied agreement to pay interest, for so absurd an argument as that the purchaser was to receive the rents to which he had no legal title, and the vendor was not to have interest, as he had no legal title to the money, could never be implied." Fludyer v. Cocker, 12 Ves. 25. To the rule that the vendee must continue to pay interest if he receives the rents and profits there is probably an exception where the money which the vendee is to pay has been set aside and appropriated for the vendor, and he has been notified of this, knows that the money is drawing no interest, and is at his own disposal. "But even if a purchaser gave such notice, yet, if the money was not actually and bona fide appropriated for the purchase, or the purchaser derived the least advantage from it, or in any manner made use of it, the court would compel him to pay interest." Dyson v. Hornby, 4 De Gex & S. 481. In Powell v. Martyr, 8 Ves. 146, it is said by the master of the rolls, Sir WILLIAM GRANT: "The rule is perfectly reasonable that if a purchaser is let into possession and perception of the rents and profits he shall pay interest for his purchase money;" and in that case it was held that, to excuse a...