M'Kennan v. Sterrett

The opinion of the Court was delivered by Rogers, J. The exception on which the plaintiff in error principally relies, is in that part of the charge, which relates to the interest. At the time of the contract, both parties were aware that Sterrett had no title; notwithstanding which, M’Kennan was to take immediate possession, as appears, from that clause which stipulates, that if M’Kennan is deprived of the property, Sterrett wfil pay him for all the improvements, either in buildings or otherwise. With a full knowledge of all the facts, Sterrett agrees to sell M’Kennan ten acres of land, with the allowance, for 45 dollars per acre, and Sterrett agrees to give him a clear title. The payments are to be one-half in hand, as soon as he makes him a right for the ten acres of land, and the remaining half in three yearly payments. Now nothing can be clearer, than that until tender of title, the vendor is not entitled to payment of the purchase money; and it is a general principle, that interest is not demandable of right, until the debt is due, except in pursuance of the terms of an express contract; and no contract is here alleged. But the argument is, that the vendee took possession, and as he enjoys the profits, he ought to pay interest And this is true in ordinary cases, where a time is fixed for the payment of the purchase money; but the right to take immediate possession was part of the contract, and the vendee’s having taken the possession cannot affect the construction of that clause in the agreement on which the debt is only recoverable after a clear title is made. A different construction would render the vendor careless of obtaining and tendering a title, as he would be sure of legal interest, from the time the vendee took possession. Why this extraordinary delay took place, we have not been informed; but there is nothing which leads us to believe that it arose from the fault of the vendee. The court are, therefore, of opinion, that interest is only demandable from the time of the tender of title, and that the remaining half of the purchase money, payable in three yearly payments, are due annually after that period. Judgment reversed, and a venire de novo awarded.