Shelton v. Usner

• Decision Date: 29 November 1926
• Docket Number: 25929
• Citation: 110 So. 504,144 Miss. 693
• Court: Mississippi Supreme Court
• Parties: SHELTON v. USNER. [*]

110 So. 504

144 Miss. 693

SHELTON v. USNER. ^[*]

No. 25929

Supreme Court of Mississippi

November 29, 1926

Division A

VENDOR AND PURCHASER. Purchaser of land under executory contract must tender performance.

Purchaser of land under executory contract must make tender of performance before bringing suit thereon.

HON. V A. GRIFFITH, Chancellor.

APPEAL from chancery court of Jackson county, HON. V. A. GRIFFITH Chancellor.

Suit by A. M. Shelton against A. M. Usner. Judgment for defendant and plaintiff appeals. Affirmed.

Affirmed.

Denny & Heidelberg, for appellant.

This was and is a proceeding for specific performance upon a written contract. As to the sufficiency of the contract itself, but one question was raised and that was as to the description of the property intended to be described therein; as to this feature, we have devoted the first of the argument hereinabove.

The case as decided by the Chancellor involves sections 8121 and 8122, Hemingway's Code (sections 2146 and 2147, Code of 1906) and section 1834, Hemingway's Code (section 2159, Code of 1906), the first two sections dealing with those who are entitled to homestead exemptions and the amount and value of such exemptions, and the third section making it mandatory that the wife of the owner must join in any conveyance, mortgage, deed of trust or other encumbrances of the homestead exempted from execution.

The chancellor in his opinion did not cite any particular case that he based his conclusion and findings upon, but in Gilmore v. Brown, 93 Miss. 46 So. 840, is the latest pronouncement of the court that we are able to find where the proposition or question of the homesteader registering and voting in some other place has been passed upon.

Ford, White, Graham & Gautier, for appellee.

The law of this state is, and has always been, that before one can maintain a suit for specific performance of a contract, he must place his opponent in default by offering to perform the contract; in contracts, as in the present case, calling for the payment of money and notes, the money and notes must be tendered, if not before suit is filed, certainly the tender must be brought into court with the filing of the bill. Griffith's Miss. Chancery Practice, section 522 and authorities cited, especially Phillip v. Dana, 121 Miss. 697; Morton v. Varnado, 127 Miss. 339.

There was no excuse for the failure to make a proper tender in the present case for at the very time Bouslog, as agent of the appellant, was pretending to make a tender to appellee's daughter and the attorney in New Orleans, his own testimony shows that Mr. and Mrs. Usner were in Ocean Springs. A tender must be made to the party at interest or some one authorized by him to receive it, and cannot be made to an agent. White v. Lee, 97 Miss. 495. Failure to furnish an abstract does not excuse a tender. Kesley v. Crowther, 162 U.S. 404, 40 L.Ed. 1017.

Denny & Heidelberg, in reply, for appellant.

In reference to that part of appellee's brief relating to the failure of appellant to make a tender herein, it will be noted that Usner had purchased from the Building & Loan Association and the tender as made by Bouslog with the notary was at this place in the city of New Orleans. Tender was also made to the attorney in the city of New Orleans who was representing Usner in the transaction at that time. We submit that under the holding in Morton v. Varnado, 121 Miss. 697, 90 So. 77, it was not...