Prichard v. Mulhall
| Decision Date | 07 June 1905 |
| Citation | 103 N.W. 774,127 Iowa 545 |
| Parties | J. A. PRICHARD, Appellee, v. JOHN MULHALL, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. WM. HUTCHINSON, Judge.
Reversed.
Jepson & Jepson, for appellant.
J. A Prichard, pro se.
THE opinion states the case.--Reversed.
On June 21, 1902, the plaintiff and defendant entered into a written contract by which, for a stated consideration, the former agreed to convey or cause to be conveyed to the latter, on March 1, 1903, a certain tract of land in Woodbury county Iowa. Plaintiff also undertook to furnish to defendant within thirty days an abstract showing perfect title to the land in one Robert Glenn, failing which he promised to return to defendant the advanced payment received, and the contract should thereupon cease to be of any effect. On March 21, 1903, plaintiff brought this action at law, alleging that he had performed all the conditions of the contract upon his part, and that on the 2d day of March (the first day having been Sunday) he tendered to the defendant a warranty deed of the land, and offered to deliver to him possession of the premises, but defendant refused to accept the conveyance or to pay the agreed price. Upon these allegations the plaintiff prays judgment against the defendant in the sum of $ 3,370 and interest. The defendant admits the written contract, but denies all other allegations of the petition, denies that the plaintiff has sustained any damage on account of the noncompletion of the contract, and, by way of counterclaim, asks to recover from plaintiff the amount of the advance payment of $ 200 and interest. In reply, the plaintiff alleges a waiver by defendant of any objection to the title to the land or to the abstract thereof. The cause was tried to the court without a jury, and judgment rendered against the defendant for the recovery of the full unpaid balance of the contract price of the land. The defendant appeals.
Assuming, for the present, that upon breach of an executory contract for sale of land the vendor may maintain an action at law for the recovery of the agreed purchase price, we are nevertheless of the opinion that the judgment here appealed from is without sufficient support in the record before us. The title to and possession of the land has at all times during this controversy been in the appellee or his grantor, Glenn. It goes without saying that appellee cannot compel payment for the full contract price and keep the property for which that price was to be paid.
If a court of law takes cognizance of the dispute and grants a recovery for the contract price, it can only be upon a tender of a proper deed of conveyance, and the production of such deed in court for the use of the purchaser. Hogan v. Kyle, 7 Wash. 595 (35 P. 399, 38 Am. St. Rep. 910); Warvelle on Vendors, 961; Melton v. Coffelt, 59 Ind. 310; Goodwine v. Morey, 111 Ind. 68 (12 N.E. 82); Soper v. Gabe, 55 Kan. 646 (41 P. 969). Now, the appellee in the present case, while alleging in his petition the tender of a deed, fails to allege that the tender has been kept good, or a present willingness and ability to convey a good title to the appellant. It is possible that this defect of allegation would not be fatal if the deed had been produced upon the trial and placed in custody of the court for delivery to the appellant upon payment of the judgment, but the record is entirely barren of evidence to that effect. True, keeping the tender good is not essential to the recovery of damages, but appellee's demand is not limited to damages, and the judgment appealed from is founded upon the theory of his right to recover the entire contract price.
The rule invoked by appellee which upholds a tender of specific property, even though not kept good, has no application to sales of land. Under a contract for the sale of specified articles of personal property, a tender at the proper time and place ordinarily operates to pass the title to the purchaser, and the seller is under no obligation to repeat his offer or to make profert of the property in court. But a tender of performance by a vendor of land has no effect to pass the title. That can be accomplished only by deed duly delivered, or by decree of a court of equity in an appropriate action.
Moreover, the decided weight of authority is to the effect that, upon breach by the vendee of an executory contract for the sale of land, the vendor's remedy is in equity for specific performance, or at law for damages, and that an ordinary action for the recovery of the contract price will not lie. Reed v. Dougherty, 94 Ga. 661 (20 S.E. 965); Goodwine v. Kelley, 33 Ind.App. 57, 70 N.E. 832; Barron v. Easton, 3 Iowa 76; Old Colony R. R. v. Evans, 72 Mass. 25, 6 Gray 25 (66 Am. Dec. 394); Smyth v. Sturges, 108 N.Y. 495 (15 N.E. 544); Hodges v. Kowing, 58 Conn. 12 (18 A. 979, 7 L.R.A. 87); Griswold v. Sabin, 51 N.H. 167 (12 Am. Rep. 76); Hogan v. Kyle, supra; Scudder v. Waddingham, 7 Mo.App. 26; Schmaltz v. Weed, 27 A.D. 309 (50 N.Y.S. 168); Dayton, etc., v. Coy, 13 Ohio St. 84; Railway Co. v. Hawkes, 5 H. L. Cas. 376; Laird v. Pim, 7 Mees. & W. 474; Meason v. Kaine, 63 Pa. 335.
The cases of Hershey v. Hershey, 18 Iowa 24, and Goodpaster v. Porter, 11 Iowa 161, are sometimes cited in support of the doctrine by which the vendor may recover the full purchase price upon failure of vendee to perform his contract. The Hershey Case is clearly not in point. There the plaintiff had entered into a contract to purchase the land, the agreed price thereof to be paid at the end of five years, with interest thereon payable semiannually, and it was held that an action at law would lie for the installments of interest as they fell due and before the obligation to pay the principal sum matured. It is obvious that the purchaser's undertaking to pay interest semiannually, and the seller's undertaking to make a deed at the end of five years, were independent covenants, and action would lie to...
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