Carver v. Fennimore
| Decision Date | 27 November 1856 |
| Citation | 8 Ind. 124 |
| Parties | Carver v. Fennimore |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
The judgment is affirmed with 3 per cent. damages and costs.
W March and J. Davis, for appellant.
D. S Gooding and R. Lake, for appellee.
Suit upon a promissory note by the assignee against the maker. The maker answered that the note was given for the consideration of a piece of land purchased by him upon the terms stated in a title-bond executed at the time, viz.: that there should be paid for the land 2,000 dollars, for which promissory notes were executed; and that he should have a good and sufficient deed, "upon payment of the purchase-money." He further answered, that a deed had not been tendered, and also that the land, at the time of the execution of the bond, was in the adverse possession of a third person.
The bond and the note sued on bear date March 12th, 1855. The note is for 1,000 dollars, due on the 25th of December, 1855. The record is silent as to the other note.
The answer was demurred to, the demurrer sustained, and the defendant failing to answer further, judgment was rendered against him for the amount of the note.
The paragraph setting up adverse possession,--in other words, want of title at the time of the execution of the bond,--is no bar to the suit. It would be enough that the obligor procured the title by the time he himself agreed to convey it. The answer should have gone further and shown that he could not do that. Wright v. Blachley, 3 Ind. 101; Sweeney v. Sampson, 5 Ind. 465 [1].
Counsel put the case, in argument, mainly upon the construction to be given to the bond; whether it makes the payment of the purchase-money and the execution of the deed independent or dependent and concurrent acts.
In Carpenter v. Lockhart, 1 Ind. 434, the contract was to make a deed so soon as the purchase-money should be fully paid; and it was held there that the deed and payment must be concurrent acts, to be performed on the day the last installment of the purchase-money fell due--that being fixed by the day of payment of the note for said installment.
In Mix v. Ellsworth, the contract was to make a deed on payment of the notes given for the purchase money; and it was held that by that contract the deed was to be executed concurrently with the payment of the last note. 5 Ind. 517.
By the contract in this case, then, the making of the deed and the payment of the last note for the purchase-money were made dependent, concurrent acts. And to entitle the holder to sue at law, on the last note he would be bound, not only to tender a deed before commencing suit, but to tender it on the day upon which the last note fell due, that being the time fixed by the contract for performance; because, at law, if either party fails to offer to comply upon the day fixed in cases of contracts like the present, he is in fault, and cannot afterwards enforce the contract except in equity, where time is not always regarded as of the essence of the contract. McCulloch v. Dawson, 1 Ind. 413; Gorham v. Reeves, 1 Ind. 421. Were the present suit, then, upon the last note to become due for the purchase-money, suit could not be maintained upon it at law by the payee without showing a tender of a deed on the day said note fell due; and as the note is not payable at a chartered bank--is not governed by the law-merchant--the same defense would avail against the assignee as against payee.
But the question now arises, is the note sued on for the last installment of the purchase-money? If it...
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