Napier v. Darlington

[67] The opinion of the court was delivered, July 3d 1872, by Williams, J. There are but two questions in this case: 1. Whether the defendant, as assignee of the lease, is entitled to the right or option given to the lessees of purchasing the demised premises at the expiration of the term ? 2. Whether, if the plaintiffs are not able to convey a valid title to the entire property, the defendant may elect to take a conveyance of their interest or shares on payment of a proportionate part of the purchase-money ? Both these questions have been decided by this court after the fullest Consideration. The first was determined in Kerr v. Day, 2 Harris 112, where, in the case of a lease with a stipulation that the lessee should have the privilege of purchasing the land during the continuance of the term, it was held, reversing the judgment of the court below, that the agreement giving the option to purchase was not a mere personal covenant, but a right, which, though resting solely with the lessee, might be transferred to his vendee, and enforced, at his election, with the same effect as if the contract had been absolute in its terms. Such a stipulation in a lease is in the nature of a continuing offer to sell, and when accepted by the lessee a contract of sale is completed: Willard v. Taylor, 8 Wall. 557. The case of Erwin v. Myers, 10 Wright 96, is conclusive of the second question. It was there ruled that if the plaintiff can make title to an undivided part only of the property sold, the defendant, in an ejectment to enforce the payment of the purchase-money, may elect to take such part, and will be entitled to a verdict if he has paid a proportionate part of the purchase-money with interest. If he has paid less, the plaintiff will be entitled to the verdict to be released on payment of the portion which still remains unpaid. As it is conceded that the plaintiffs in this case can make title for only two-fifths of the land, it follows that the defendant is entitled to a conveyance of their shares on payment of a proportionate amount of the purchase-money agreed to be paid for the_entire property. The'ease was tried on these principles in the court below, but through inadvertence in framing the final order it was so drawn as to allow the defendant, upon his acceptance of the deed filed by the plaintiffs for the entire property, to take out of court three-fifths of the whole purchase-money which he had paid into court in compliance with the verdict. If this order is allowed to stand, it will compel the plaintiffs to convey the entire property'to the defendant for two-fifths of the purchase-money agreed to be paid therefor. This would be manifestly unjust. All that the defendant can lawfully require is a conveyance of the plaintiffs’ interests on payment of a proportionate amount of the purchase-money, and therefore the order must be so modified as to allow him to take out of court three-fifths of [68] the amount paid into court, exclusive of costs, upon his acceptance of a deed for the undivided two-fifths of the land for which the plaintiffs can make title. Judgment reversed, and a modified judgment entered.