McLaughlin v. Nelson
| Decision Date | 18 March 1925 |
| Docket Number | 22997 |
| Citation | 202 N.W. 871,113 Neb. 308 |
| Parties | JAMES R. MCLAUGHLIN, APPELLANT, v. ROBERT F. NELSON, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lincoln county: J. LEONARD TEWELL, JUDGE. Affirmed on condition.
AFFIRMED ON CONDITION.
Hoagland & Carr, for appellant.
Beeler Crosby & Baskins, contra.
Heard before MORRISSEY, C. J., ROSE, DAY and THOMPSON, JJ., and SHEPHERD, District Judge.
Plaintiff McLaughlin, sued the defendant, Nelson, for $ 1,400 paid on a real estate purchase, which was not consummated, because, as he claimed, a merchantable title was not furnished. By written agreement entered into on the 7th day of August 1919, between Nelson, as vendor, and McLaughlin, as vendee, the former was to furnish the latter good and merchantable title, together with deed and abstract, on or before March 1, 1920, and time was made an essential element of the contract. A portion of the land had an unreleased mortgage on it, bearing date January 4, 1900, and being due December 16, 1901. The record shows that the maker of this mortgage had quitclaimed the land to his mortgagee during November of 1901, and that shortly thereafter the latter had conveyed the same to one McAllister by warranty deed. In addition to this, the abstract shows an affidavit reciting that in receiving said quitclaim it was the intention of the mortgagee to merge the mortgage in the deed.
Promptly upon examination of the abstract, which occurred a few days after the execution of the purchase contract, plaintiff returned the same to the defendant with an attorney's opinion to the effect that said unreleased mortgage was a cloud upon the title which would have to be removed by release or court decree. Defendant seems to have paid no immediate attention to this, except to secure a contrary opinion from his own attorney. As time of settlement drew near, however, on or about February 28, 1920, he told the plaintiff that he considered the title good as it stood. But plaintiff had had disparaging comment upon it from other sources to supplement his attorney's opinion, and replied that it would have to be cleared, as suggested, by March 1 or the deal could not go through. And he stuck to this, although defendant offered to get a decree quieting the title as to the mortgage within 15 or 20 days, and to put up sufficient money to make good his agreement in this regard. It followed that defendant made no tender on March 1, though plaintiff was on hand, and ready, willing and able to perform according to his word, and that on the next day plaintiff declared a rescission of the contract, notifying the defendant thereof and demanding a return of his $ 1,400 of earnest money. On the 4th of March defendant tendered deed and abstract, together with a written promise (subsequently kept) that he would proceed immediately to secure the order of court originally demanded. But such tender was refused.
The district court found against the plaintiff on his contention that the title was unmerchantable and that no sufficient tender was made, and in favor of the defendant on his cross-petition praying for specific performance. A decree was entered providing that, in case of the failure of the plaintiff to take the land and to pay the consideration within 60 days, his earnest money should be forfeited to the defendant, and title to the property should be quieted in the latter.
In this state time is held to be of the essence of the contract, in the absence of waiver or estoppel, where it is so provided by the express language of the contract, and so intended by the parties. Such was the case here. But it is clear from the evidence that plaintiff was emphatic in his statement to defendant on the 28th of February that he would not take the title unless a decree or a release was obtained before March 1st. Accordingly, it would have been a vain thing for defendant to have tendered deed and abstract without decree or release, and the fact that he did not do so cannot avail the plaintiff, provided the title was good without such decree or release. Where a tender would be of no avail if made, and the fact in this regard is beyond dispute, a failure to make the tender in question will not militate against the party from whom the tender is required.
The whole question, then, is whether or not the title originally presented by the abstract was good and merchantable. If it was, the district court was right in his findings and decree. If it was not, the plaintiff is entitled to a reversal. Merchantable means "vendible because of its fitness to serve its proper purpose." Anderson's Dictionary of...
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