Mason v. Payne

• Decision Date: 31 March 1871
• Citation: 47 Mo. 517
• Parties: EDWIN R. MASON, TRUSTEE OF MARY C. MASON, Appellant, v. EDWARD H. PAYNE et al., Respondents.
• Court: Missouri Supreme Court

47 Mo. 517

EDWIN R. MASON, TRUSTEE OF MARY C. MASON, Appellant,

v.EDWARD H. PAYNE et al., Respondents.

Supreme Court of Missouri.

March Term, 1871.

Error to St. Louis Circuit Court.

Gray, Jewett & Hamilton, for appellant.

This suit was brought to the April, 1869, term of the St. Louis Circuit Court, to divest title out of respondents and to vest it in appellant, Edwin R. Mason, as trustee of Mary C. Mason. This was an offer to sell, and if there is any doubt as to the terms and conditions of sale, it will be construed against the vendor. (Page v. Hughes, 2 B. Monr. 442; D'Arras v. Keyser, 26 Penn. 254; Souffrain v. McDonald, 27 Ind. 276; Kerr v. Purdy, 50 Barb. 24; Collins v. Van Dorn, 1 Clarke, Iowa, 578; Seaton v. Mapp, 2 Coll. C. C. 556; Greaves v. Wilson, 25 Beav. 293.)

In general, it is sufficient if the plaintiff offers in his petition to make payment and to perform the contract on his part. For the reasons stated, a formal tender before suit would in this instance have been unavailing. (Stevenson v. Maxwell, 2 Comst. 415; Morris v. Hoyt, 11 Mich. 18; Kerr v. Purdy, 50 Barb. 24.)J. N. Straat, for respondents.

BLISS, Judge, delivered the opinion of the court.

Defendant's ancestor executed to the plaintiff a lease of certain lands in St. Louis county for the term of one hundred years, which lease contained the following agreement:

“And it is further agreed that at any time within five years from the date of these presents, said party of the second part, his heirs or assigns, shall have the privilege of purchasing the fee simple of the aforesaid described tract of land hereby leased, the said party of the second part paying therefor at the rate of $200 per acre, one-fourth paid down in cash and the remainder to be paid in three equal annual payments from the date of said purchase, with six per cent. interest thereon, payable annually, the whole to be secured by a deed of trust on said land. In case said party of the second part elects to buy said tract of land as above, he shall give said party of the first part, or his legal representatives, thirty days' notice, in writing, of his intention so to do.”

Two days before the expiration of the five years the plaintiff gave notice to the defendants, who are the heirs of the lessor, of his election to purchase, and brings this suit for specific performance. It is admitted that if the plaintiff has complied with the contract in regard to the purchase, or that such compliance has been rendered unnecessary, he is entitled to a conveyance. 1. The lessee and plaintiff had the privilege of purchasing at any time within five years. 2. He was required, if he elected to purchase, to give thirty days' notice of his intention to make a payment of one-fourth, etc.

It will be seen that the term of five years was not given him in which to come to a conclusion whether he would purchase or not. Nothing is said in the first paragraph upon that subject, although without the second the time when such conclusion had been arrived at would be of no importance. But the lessee must be ready to purchase and ready to receive a deed within the five years, and hence must have performed the conditions that would obligate the lessor to convey. These conditions were payment and the thirty days' notice. So far as the payment is concerned, the plaintiff has doubtless done all he could under the circumstances. The defendants are minors and could not receive the payment due them if it had been tendered, nor could they make a deed. It would therefore have been an idle ceremony to make a formal tender and demand; and so far it was sufficient to aver, as he has done, that he is ready to make the payment to any one authorized to receive it, and to bring the money into court subject to its order. (Collins v. Van Dorn, 1 Iowa, 578; Kerr v. Purdy, 50 Barb. 24; Page v. Hughes, 2 B. Monr. 442.)

The plaintiff claims also that the notice was in season--that it was sufficient to give it within the five years. But the notice must...