Sorensen v. Larue

• Decision Date: 01 December 1926
• Citation: 252 P. 494,43 Idaho 292
• Parties: P. A. SORENSEN, Respondent, v. W. S. LARUE and LINNIE LARUE, His Wife, Appellants
• Court: Idaho Supreme Court

252 P. 494

43 Idaho 292

P. A. SORENSEN, Respondent, v. W. S. LARUE and LINNIE LARUE, His Wife, Appellants

Supreme Court of Idaho

December 1, 1926

VENDOR AND PURCHASER-EXECUTORY CONTRACT FOR SALE OF LAND-FURNISHING ABSTRACT CONDITION PRECEDENT-UNJUSTIFIED RESCISSION BY VENDOR-EFFECT-TENDER AND DEMAND-COURT CANNOT MAKE CONTRACT-CHANGE OF FORM OF ACTION NOT PERMITTED.

1. Condition requiring vendor to furnish abstract showing clear title fifteen days before last payment on contract is condition precedent to right of vendor to exact such payment.

2. Where vendor was unable to furnish abstract showing clear title at time deed should have been given and final payment made, purchaser was under no duty to tender payment.

3. Where vendor, although unable to furnish abstract showing clear title, by his conduct and by bringing suit, declared contract rescinded, purchaser had right to adopt rescission and declare breach of contract and to recover payments made thereunder.

4. Admissions of counsel that purchaser was unable to make payment are immaterial when made after time when purchaser had right to refuse to make payment because of vendor's inability to furnish abstract showing clear title.

5. Although both parties under executory contract may waive strict performance, purchaser need not thereafter show further tender or demand, if he shows express refusal of vendor to comply.

6. Declaration of intention not to comply with contract, made before time when vendor was entitled to compliance, must be positive and unequivocal in order that vendor may rely thereon.

7. Vendor having demanded payment after date of letter from purchaser, and at time that he himself was in default in failing to furnish abstract, cannot be heard to claim that purchaser had unqualifiedly refused to make payment in such letter and thereby placed himself in default before payment was due.

8. Purchasers' offer in cross-complaint to return property under such conditions as court might impose was sufficient where vendor was nonresident with no other property in the state, so that purchasers were not thereby precluded from rescission for failure to actually return property.

9. Good title which vendor must furnish under executory contract for sale of land is ordinarily good title as of date when same is required by contract to be furnished.

10. Where vendor brought action to enforce forfeiture of executory contract for sale of land, without having cleared title or requesting time or opportunity to do so, court erroneously granted additional time to clear title after determining title was not sufficient, as in effect imposing on purchaser performance of contract different in matter of time from that entered into.

11. Courts cannot make contracts for parties.

12. Vendor cannot be permitted to turn an unsuccessful action of ejectment into a successful one for specific performance when assertion of his unsuccessful claim furnishes ground for purchasers to rescind and resist specific performance.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.

Action to recover possession of real property. Judgment for plaintiff. Reversed and remanded.

Reversed and remanded. Costs to appellants. Petition for rehearing denied.

Hawley & Hawley, for Appellants.

The plaintiff was under obligation, as condition precedent to receiving the final payment, to furnish an abstract of title. (First Nat. Bank v. Callahan Min. Co., 28 Idaho 627, 155 P. 673; Marshall v. Gilster, 34 Idaho 420 201 P. 711; Kennedy v. Dennstadt, 31 N.D. 422, 154 N.W. 271; 5 Page on Contracts, p. 5205; McLaughlin v. McAllister, 36 F. 745; Walsh v. Colvin, 53 Wash. 309, 101 P. 1085.)

The abstract must show title free from reasonable doubt. ( Bell v. Stadler, 31 Idaho 568, 174 P. 129; Howe v. Coates, 97 Minn. 385, 114 Am. St. 723, 107 N.W. 397, 4 L. R. A., N. S., 1170; Le Roy v. Harwood, 119 Ark. 418, 178 S.W. 427; Tandy v. Waesch, 154 Cal. 108, 97 P. 69.)

It was the court's duty on finding that the plaintiff did not have a cause of action to enter judgment upon the defendant's cross-complaint on the theory that the vendor having failed to perform his agreement, the vendee had a right to rescind the agreement and recover back his payments. (Hall v. Yaryan, 25 Idaho 470, 138 P. 339; Boyd v. Boley, 25 Idaho 585, 139 P. 139; Newmyer v. Roush, 21 Idaho 106, Ann. Cas. 1913D, 433, 120 P. 464; Danzer v. Moerschel (Mo.), 214 S.W. 849; Moser v. Tucker (Tex. Civ. App.), 195 S.W. 259; Wilson v. Sunnyside Orchard Co., 33 Idaho 501, 196 P. 302; Cabrera v. Payne, 10 Cal.App. 675, 103 P. 176; Abbott v. Independent Torpedo Co., 98 Okla. 239, 224 P. 708; San Mateo Land Co. v. Elem, 293 F. 869; Rath v. Wilgus, 110 Neb. 810, 195 N.W. 115.)

The defendants had ample grounds for rescission and did rescind the contract, both by notice and by filing cross-complaint. ( Herrington v. Hubbard, 1 Scam. (Ill.) 569, 33 Am. Dec. 426; 2 Black on Rescission and Cancellation, par. 576; Hartwig v. Clark, 138 Cal. 668, 72 P. 149; California Farm & Fruit Co. v. Schiappa-Pietra, 151 Cal. 732, 91 P. 593; Harding v. Olson, 177 Ill. 298, 52 N.E. 482; Knappen v. Freeman, 47 Minn. 491, 50 N.W. 533; Hamilton-Brown Shoe Co. v. Millikin, 62 Neb. 116, 86 N.W. 913; McGowan v. Blake, 134 A.D. 165, 118 N.Y.S. 905; Angel v. Columbia Canal Co., 69 Wash. 550, 125 P. 766; Laboyteaux v. Swigart, 103 Ind. 596, 3 N.E. 373; Cunningham v. Pettigrew, 169 F. 335, 94 C. C. A. 457; Marshall v. Gilster, supra.)

The court had no right to eliminate the importance of time in the contract and practically remake it. (Machold v. Farnan, 14 Idaho 258, 94 P. 170; Allen v. Kitchen, 16 Idaho 133, 18 Ann. Cas. 914, 100 P. 1052.)

While the defendants waived the presentation of abstract fifteen days before the date of the last payment, they did not waive the presentation of an abstract showing good title as a condition precedent to the final payment. (Prairie Development Co., Ltd., v. Leiberg, 15 Idaho 379, 98 P. 616; Machold v. Farnan, supra; Anno. to 4 A. L. R., p. 821; Carroll v. Mundy & Scott, 185 Iowa 527, 170 N.W. 790, 4 A. L. R. 811.)

J. B. Eldridge, for Respondent.

Appellant cannot maintain his cross-complaint and has never stated a cause of action. (Rischar v. Shields, 26 Idaho 616, 145 P. 294; Chamberlin v. Ivens, 36 Idaho 235, 210 P. 580; Hall v. Yaryan, 25 Idaho 470, 138 P. 339; Nance v. Avenall, 26 Cal.App. 551, 147 P. 583; Wolfe v. Lake, 178 Ill.App. 340; Poheim v. Meyers, 9 Cal.App. 31, 98 P. 65; Loggie v. Chandler, 95 Me. 220, 49 A. 1059; Crocker v. Crocker, 198 Mass. 401, 84 N.E. 476; Abercrombie v. Stoddard, 39 Idaho 146, 228 P. 232.)

The court had authority to give the appellants seven months in which to make the last payment after perfection of title, and this was more than a reasonable time. (Berding v. Northwestern Securities Co., 36 Idaho 384, 211 P. 62; Schurger v. Moorman, 20 Idaho 97, Ann. Cas. 1912D, 1114, 117 P. 122, 36 L. R. A., N. S., 313.)

The appellant invoked the equity powers of the court and will not be heard to complain if the court exercised the same. (21 C. J., sec. 2149, p. 171.)

The making of the last payment and the furnishing of an abstract were mutual, concurrent obligations. (Abercrombie v. Stoddard, supra; Marshall v. Gilster, supra; Rischar v. Shields, supra; Chamberlin v. Ivens, supra.)

TAYLOR, J. Wm. E. Lee, C. J., and Budge, J., concur.

OPINION

TAYLOR, J.

Respondent brought this action to recover possession of lands sold by him to appellant W. S. Larue under a contract by which appellant agreed to pay $ 50,000 by assuming a mortgage on the premises in the sum of $ 13,630, and paying the sum of $ 36,370 in instalments together with interest, taxes and certain assessments upon the land. There is little if any dispute as to the facts. They are largely stipulated. The last payment of $ 8,000 came due upon March 5, 1922. Time was made the essence of the contract, and the vendor was "to furnish an abstract of title, fifteen days before last payment is made, showing title in the party of the first part, free and clear of all encumbrances to the date of this agreement, except a balance of $ 13,630 due on a mortgage of $ 14,500, and to furnish good and sufficient warranty deed for the conveyance of said premises to the party of the second part . . . . "

The respondent did not tender an abstract of title fifteen days or any time before March 5, 1922, and was not upon that date or for a long time thereafter, if at all, able to give title; neither did the appellant upon that date tender the balance of $ 8,000. On March 20, 1922, respondent furnished abstracts to which the appellant objected and served written notice of his objections. The respondent at all times insisted that the abstracts showed title in compliance with the contract, and upon May 11, 1922, served on appellants a notice in writing demanding payment of the balance on or before June 1, 1922, and stating that unless so paid all payments theretofore made would be forfeited, with a demand of possession unless payment was so made. On May 26, 1922, appellant served on respondent further objections to the title, specifically reciting the defects and rejecting the abstracts, and declaring that he was ready, able and willing to comply with his contract and pay plaintiff the full amount due on his contract as soon as plaintiff should establish the character of title called for by the agreement, and further expressing a willingness to cancel the contract and surrender the premises upon repayment of the moneys paid by him, and notifying plaintiff that if he did not furnish an abstract showing such title by July 1, 1922, he would rescind the contract and sue for the return of all payments made thereunder.

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