Irvine v. Hawkins
| Decision Date | 27 September 1889 |
| Docket Number | 1,310. |
| Citation | 22 P. 240,20 Nev. 384 |
| Parties | IRVINE v. HAWKINS et al. |
| Court | Nevada Supreme Court |
Appeal from district court, Washoe county; R. R. BIGELOW, Judge.
Ejectment by Irvine against Hawkins and Rhue. Judgment for defendants. Plaintiff appeals.
William Webster, for appellant.
Thom as E. Haydon, for respondents.
A. J Clark was the owner of the premises described in the complaint.
Upon the 20th day of May, 1879, he bargained them to defendant Ellen Hawkins for $200, payable, $100 down, and the remaining $100 on or before the expiration of six months thereafter. He delivered his bond for a deed subject to these conditions to Mrs. Hawkins. Thereafter Mrs. Hawkins entered into the possession of the premises, and, becoming indebted to defendant Rhue, conveyed her interest therein to him by deed absolute upon its face, but intended as a mortgage to secure payment of the indebtedness. The bond and deed were recorded in the records of the county during the month of June, 1879. Upon the day the remaining $100 of the purchase money became due, Rhue requested a deed. Clark caused the deed to be prepared and sent to Rhue at his place of business in Reno. The person whom Clark sent delivered the deed, and received $112, that being the amount of principal and interest due. He had been instructed, however to obtain $5 additional to cover expenses incurred in the preparation of the deed. This matter escaped his attention for the moment, but recurred to him before leaving, and he demanded it, saying that Clark would be dissatisfied if he returned without it. Rhue refused returned the deed, and received back the money paid. Clark approved of the action taken in his behalf. Upon the 14th day of August, 1883, plaintiff acquired Clark's interest in the premises by purchase, and thereafter commenced the present action of ejectment. Defendants, by way of equitable defense, established the facts above stated, and obtained a decree awarding plaintiff $112, (the unpaid purchase money,) and requiring him to convey the legal title to defendant Rhue. From the judgment, and an order overruling a motion for a new trial, plaintiff appeals.
The principal objection urged is that the equitable defense could not be maintained without a tender of the purchase money. The transaction at Rhue's, if not amounting to a tender, at least dispensed with it. But respondent was not required to make an unconditional tender as a prerequisite to relief although a failure to offer to perform would, under the contract, have entitled the vendor to interest until the completion of the purchase. Rhue was entitled to receive a deed upon paying the money, and Clark was entitled to the money upon delivering a deed. The covenants were dependent, and the acts to be performed, concurrent. Otherwise a purchaser might pay his money without receiving a conveyance. The contract does not make a tender or demand necessary by either party to fix the liability of the other. Tender or demand is not, therefore, a condition precedent to the enforcement of rights under the contract.
In Bruce v. Tilson, 25 N.Y. 197, the court of appeals said: ...
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Thompson v. Lincoln Nat. Life Ins. Co.
...963. In the latter case the agreement seems to have been an option rather than a contract of purchase and sale. In Irvine v. Hawkins, 20 Nev. 384, 22 P. 240, 241, court said, quoting from Bruce v. Tilson, 25 N.Y. 194, 197: "The distinction between an action for a specific performance in equ......
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Thompson v. Lincoln Nat. Life Ins. Co., 8342.
...963. In the latter case the agreement seems to have been an option rather than a contract of purchase and sale. In Irvine v. Hawkins, 20 Nev. 384, 22 P. 240, 241, the court said, quoting from Bruce v. Tilson, 25 N.Y. 194, 197: “The distinction between an action for a specific performance in......
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Ebert v. Western States Refining Co., 4137
...due and unpaid and the $16,000 remaining to be paid on the purcahse price. See Mosso v. Lee, 53 Nev. 176, 295 P. 776; Irvine v. Hawkins, 20 Nev. 384, 22 P. 240; Restatement, Contracts, § 306, § 374 Affirmed. MERRILL, C. J., and BADT, J., concur. ...
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Studebaker Bros. Co. of Utah v. Witcher
...to that declared by this and other courts--that a tender of money is not necessary when such a tender will avail nothing. Irvine v. Hawkins, 20 Nev. 384, 387, 22 P. 240. In Wertz v. Barnard, 32 Okl. 426, 122 P. 649, it is said: " 'If no demand is made, and the original possession of the def......