Boyd v. Boley

• Decision Date: 20 February 1914
• Parties: JAMES H. BOYD, Respondent, v. M. B. BOLEY, Appellant
• Court: Idaho Supreme Court

139 P. 139

25 Idaho 584

JAMES H. BOYD, Respondent, v. M. B. BOLEY, Appellant

Supreme Court of Idaho

February 20, 1914

CONTRACT FOR SALE OF REAL PROPERTY-PURCHASER NOT REQUIRED TO TAKE DOUBTFUL TITLE-VENDEE'S REMEDY.

1. Where parties enter into a contract for the conveyance of real property for a valuable consideration, wherein vendor agrees to give vendee a "good and sufficient warranty deed" therefor, vendor must place himself in a position to comply with the requirement to convey clear title before he can compel vendee to complete his payments of the purchase price.

2. Where under a contract to convey real property by a good and sufficient warranty deed, vendor insists on vendee taking a doubtful title, vendee is at liberty to rescind the contract and demand repayment of money paid by him on the purchase price.

3. Held, that the evidence in this case sustains the findings of the lower court, and that the lower court committed no error in its rulings on the admission and rejection of evidence.

APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. Chas. O. Stockslager, Judge.

Action for the recovery of payments made on the purchase price of land and taxes paid, on contract for sale. Judgment for plaintiff and defendant appeals. Affirmed.

Judgment affirmed. Costs awarded to respondent.

F. A Hutto, for Appellant.

The contract between Boyd and Boley was in writing; no fraud or mistake in the transaction, so that this contract and it alone should have guided the lower court. (Jacobs v Shenon, 3 Idaho 274, 29 P. 44; 21 Am. & Eng. Ency. of Law, 1080.)

"That a party to a valid contract, in the absence of fraud or other special reason, cannot rescind at pleasure." (Bowman v. Ayers, 2 Idaho 465, 431, 21 P. 405.)

Boyd apprises us in his pleadings that C. M. Boley was perfectly aware of this written contract being made, so C. M. Boley would be bound by the law of estoppel. His silence gave consent and there is nothing in all the pleading that justifies any rescission. (16 Cyc. 680, 681; 2 Perry on Trust and Trustees, 6th ed., secs. 849, 850; 2 Pomeroy's Eq Jur., 3d ed., secs. 808, 809; 19 Am. Dig., col. 2407.)

E. L. Ashton, for Respondent.

Boyd's contract calling for good title, he did not have to buy a lawsuit. (Brooklyn Park Commrs. v. Armstrong, 45 N.Y. 234, 6 Am. Rep. 70.) Title should be free from litigation. (Turner v. McDonald, 76 Cal. 177, 9 Am. St. 189, 18 P. 262.)

The son being unable to secure the father's interest and to give possession, there was a failure of consideration, and Boyd is entitled to a lien (under sec. 3445, Rev. Codes) for his advance payments. (Benson v. Shotwell, 87 Cal. 49, 25 P. 249. Cases under sec. 3050, Kerr's Civil Code.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This action was instituted by the respondent against the appellant for the recovery of payments made on the purchase price and taxes paid on a tract of land in Twin Falls county. Judgment was entered for the plaintiff and the defendants appealed.

On December 21, 1911, the appellant, M. B. Boley, and respondent entered into a contract in writing whereby Boley agreed to convey to Boyd forty acres of land for a stipulated price, and to give him a good and sufficient warranty deed therefor. Boyd made a payment under this contract and also paid taxes amounting to some $ 85, and thereafter, and prior to making final payment, Boyd learned that Boley's father had an equitable interest in the property and that the father declined and refused to convey and at the same time that the father was in possession of the premises under contract. Boyd wired to appellant, advising him that the father was in possession and declined to surrender possession until Boley's wife signed a deed to a certain interest in the land. Appellant refused and neglected to clear the title or settle the controversy between himself and his father, and, on the contrary, insisted on respondent paying the balance of the purchase price and taking a deed for the land under these conditions. Respondent declined to do so and claimed the right to rescind the contract and have his money returned to him.

It appears that when this tract of land was purchased, both the father and son joined in the purchase and contributed in making up the sum of money which went to pay the purchase price. The legal title was taken in the name of the son who is appellant here. There seems, however, to have been an oral agreement between the father and son to the effect that the father's interest was to come out of the remaining tract...