Sayre v. Mohney

• Decision Date: 27 March 1899
• Citation: 35 Or. 141,56 P. 526
• Parties: SAYRE v. MOHNEY et al.
• Court: Oregon Supreme Court

56 P. 526

35 Or. 141

SAYRE v. MOHNEY et al.

Supreme Court of Oregon

March 27, 1899

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by Ruth E. Sayre, executrix, against W.D. Mohney and others. Judgment for plaintiff. Defendants appeal. Affirmed.

This is the second appeal in this case, the facts of which are stated in the former opinion. Sayre v. Mohney, 30 Or. 238 47 P. 197. The cause being remanded, the defendants, by leave of court, filed an amended answer, omitting therefrom the averment in the original to the effect that plaintiff agreed to convey to them as partners the real property described in the bond for a deed. Thereupon plaintiff filed a reply denying the allegations of new matter contained in the amended answer, and averring that, after the execution of the bond, she entered into an agreement with the defendants, who in consideration of being let into possession of the premises, agreed that the deed therefor, to be executed by her, and the release of the mortgage thereon, to be executed by the board of school-land commissioners, should be delivered at the office of the state treasurer simultaneously with the payment to said officer of the sum of $900 of the purchase price upon the maturity of the note therefor, which was to be accepted by the mortgagee in full satisfaction of the lien upon the land intended to be conveyed; that defendants, having assented to this mode and place of payment, took immediate possession of said land, which they have since continuously held, notwithstanding which they neglected to pay the state treasurer, upon the maturity of the note, the sum agreed upon, or any part thereof, and refused to accept the release of said mortgage and plaintiff's deed, which were duly tendered them, and which instruments, upon the commencement of this action, were deposited with the clerk of the lower court for the purpose of being delivered to the defendants upon the payment of the balance of the purchase price of the land. The cause, being at issue, was tried, resulting in a verdict and judgment for plaintiff in the amount demanded, and defendants appeal.

H.J Bigger and Geo. G. Bingham, for appellants.

W.M. Kaiser and John A. Carson, for respondent.

MOORE J. (after stating the facts).

The plaintiff, having introduced in evidence the promissory note which formed the basis of her action, rested, whereupon defendants' counsel moved the court for a judgment of nonsuit, which being overruled, an exception was saved. It is contended that, inasmuch as the complaint is in the ordinary form in an action on a promissory note, and it being averred in the answer that, in consequence of plaintiff's inability to convey the premises by a good and sufficient title, the note was without consideration, and the reply having admitted that the written promise was executed as evidence of the purchase price agreed to be paid for the land, and matured at the time the deed should have been executed, the conveyance and the payment became mutual and dependent conditions of the agreement, and, this being so, it was incumbent upon plaintiff to allege in the complaint, and to prove at the trial, that she tendered to the defendants a deed to the premises, but, having failed in these respects, the court erred in refusing to give the judgment of nonsuit.

The law appears to be well settled that if a vendor agree to convey real property upon the payment of the last installment of the purchase price, which is evidenced by a promissory note, the payment thereof and such conveyance, being simultaneous in their respective performance and execution, become mutual and dependent conditions of the agreement, and that, before the vendor will ordinarily be permitted to recover in an action on such note, he must, as a condition precedent, allege in the complaint, and prove at the trial, that prior to the commencement of the action he tendered to the purchaser a deed of the premises which he had covenanted to convey, and otherwise performed his part of the agreement. Glassell v. Coleman, 94 Cal. 260, 29 P. 508; McCroskey v. Ladd, 96 Cal. 455, 31 P. 558; Naftzger v. Gregg, 99 Cal. 83, 33 P. 757; Duncan v. Charles, 4 Scam. 561; Headley v. Shaw, 39 Ill. 354; Sheeren v. Moses, 84 Ill. 448; Iles v Elledge, 18 Kan. 296; Peques v. Mosby, 7 Smedes & M. 340; Underwood v. Tew, 7 Wash. 297, 34 P. 1100. This rule is predicated upon the doctrine that, when mutual covenants go to the whole consideration on both sides, they are dependent conditions, the performance of which, or an offer to perform, must be alleged by the party claiming a breach of the agreement. 4 Enc.Pl. & Prac. 635. Where, however, the purchaser enters into possession of the premises, they thereby become independent covenants; and, this being so, in a suit by the vendor to recover from the purchaser in possession, an averment in the complaint of the vendor's ability and readiness to convey the land will be treated as surplusage. Weaver v. Childress, 3 Stew. (Ala.) 361. The reason for the rule announced in that case must rest upon the theory that, the purchaser having executed his promissory note evidencing the last installment of the purchase price of real property, the possession of which has been delivered to him under an agreement that upon the payment of such note he shall receive a deed to the premises, such possession must be presumed to be of some value, and hence the note is not wholly without consideration, even if it should be found that the vendor's title is defective, in which case the vendor may maintain an action on such note without alleging in the complaint a tender of the deed, thereby casting upon the purchaser the burden of alleging and proving the failure of the consideration of the note pro tanto. True, the amended answer alleges that the purchase price mentioned in the bond for the deed was the consideration expressed in the note, "and there was no other consideration therefor"; but, this averment having been denied in the reply, the pleadings do not admit that the mutual covenants of the parties are dependent, or that they go to the whole consideration of the agreement. The possession of the premises probably formed no part of the consideration of the note, for, as was said in the former opinion: "The bond for a deed not having provided that defendants should have the possession of the premises, the right of possession remained with the legal title, and was therefore in the plaintiff; and, as the note was executed for the entire purchase money, before the surrender of the possession by plaintiff, it is quite evident the license given the defendants to occupy the land formed no part of the consideration of the note." An issue, however, in addition to the agreement to convey the land, having been made as to the consideration for the note, the execution of which is admitted in the answer, the burden was cast upon the defendants of showing that such instrument was, either wholly or pro tanto, without consideration; and hence no error was committed by the court in overruling the motion for a nonsuit. In pleading, the primary cause of action should, of course, be stated in a complaint; but the defendants having alleged in their answer that plaintiff failed to tender a deed conveying a good title to the land, which averment being denied in the reply, any failure upon her part to allege the performance of a condition precedent, in an action upon a negotiable promissory note, if such were necessary in case of failure of the consideration either wholly or pro tanto, when the evidence of such failure is contained in a separate memorandum ( Smalley v....