Brown v. Widen

• Decision Date: 10 April 1905
• Citation: 103 N.W. 158
• Parties: BROWN v. WIDEN.
• Court: Iowa Supreme Court

103 N.W. 158

BROWN

v.WIDEN.

Supreme Court of Iowa.

April 10, 1905.

Appeal from District Court, Calhoun County; Z. A. Church, Judge.

Suit in equity to recover money paid on a land contract. There was a decree for the plaintiff, from which the defendant appeals. Affirmed.M. E. Mack, for appellant.

E. C. Stephenson, for appellee.

SHERWIN, C. J.

The plaintiff paid $500 on the purchase price of the real estate in question, under a written contract which provided that the defendant should furnish a good and sufficient abstract of title February 1, 1903, and that the balance of the purchase price should be paid, and a deed executed, on the 1st day of March, 1903. An abstract of title was furnished about the 17th of February, which was returned to the defendant on the 21st of the same month with the plaintiff's objections thereto. The defendant practically conceded that the abstract failed to show a perfect title in him, and undertook to perfect his title by a quitclaim deed and an affidavit, but whether the abstract was ever perfected in fact does not appear. On the 28th day of February, 1903, the defendant tendered to the plaintiff an abstract of title and a deed, both of which the plaintiff refused to accept because he had been advised by his counsel that the defects of title appearing in the abstract had not been cured.

The contract called for an abstract showing good title, and nothing less than this would satisfy the condition, no matter what the vendor's real title might be. Lessenich v. Sellers, 119 Iowa, 314, 93 N. W. 348. This was a condition precedent, to be performed by the vendor before he could require further action on the part of the vendee, and the burden of proof is upon him to show that he in fact complied therewith. The plaintiff pointed out the defects in the abstract delivered to him within a reasonable time thereafter, and he was under no obligation to continue the examination of abstracts as long as the defendant chose to submit them. If the abstract was perfect at the time of the subsequent tender thereof, it was the duty of the defendant to prove such fact by the abstract itself. This he did not do, although it was in his possession at the time of the trial. He cannot be permitted to withhold it and successfully assert now that it was the duty of the plaintiff to prove that it did not then show the title required by the contract. Furthermore, a court of equity will not enforce the specific performance of a land...