Healy v. Pfau

Ames, J. The defendant insists that, by the terms of the bond, the plaintiff had no right of action upon the note declared upon, without having first delivered or tendered to the defendant a deed of the land which was the subject of the contract between the parties. It is not easy to give a sensible construction to an instrument so illiterate and obscure as the bond in which 591 the partios have undertaken to set forth the terms of their con tract. The bond given by one party, and the notes given and the payment made by the other, all were of the same date, and are agreed to have constituted one transaction. If the defendant is right in his claim that, upon the delivery of the notes and the payment of one hundred dollars, he was entitled to his deed, there was no occasion for a bond at all. In that view of the case, he had done all that he was required to do, in order to be entitled to the conveyance. He had bought the land on credit, and had given all the securities which he was required to give. Nothing remained for the plaintiff to do except to deliver the deed, and, having done so, to wait for the payment of the notes as they should come to maturity in regular succession. But the instrument is described on its face as a bond for a deed — a form of expression which imports that a deed is to be given at some future time, and that for some reason it is not to be delivered presently. We cannot give any sensible interpretation to the bond, or any rational explanation of the fact that it was given and accepted instead of a deed, except upon the assumption that the parties had it in contemplation that something remained to be done in the future, and that the delivery of the notes was not of itself to entitle the defendant to his deed. No deed was delivered by the plaintiff, and none was demanded or apparently expected by the defendant at that stage of their dealings ; and there is no apparent reason why he should have taken a bond for a deed, if he had in fact fulfilled the conditions upon which he was to have a present and immediate right to the deed. Our conclusion therefore is, that the true meaning of the instrument, however awkwardly and imperfectly expressed, must be that the defendant was to have a bond for a deed, until he should have paid the notes; and that whenever they were paid, whether at or before their maturity, it would be the duty of the plaintiff to execute the conveyance. Exceptions overruled.