Fletcher v. Storer

Pierce, J. On December 17, 1896, the plaintiff’s assignor paid the last instalment of the principal sum to be paid under the agreement. Concurrently therewith she had the right to a conveyance of the premises by a deed in the form annexed to the agreement. In the exercise of this right she made a demand upon the defendants, but waived performance, stating that by reason of the absence of necessary parties the deed could not be given. The defendants were then and ever since have been in possession of the premises. The attitude of the parties in reference to a conveyance between December, 1896, and some time in 1908 does not appear in the agreed statement of facts, but from all the circumstances, including oral and written demands, it may be inferred either that the inability of the defendants to give a deed continued because of the absence of necessary parties, or that there were other causes of inaction not attributable to the vendee’s neglect. On July 7, 1908, the vendee assigned to the plaintiff all her right, title and interest in and to the agreement for sale, and it is agreed that the plaintiff has all the assignor’s rights. In September, 1908, the plaintiff demanded a deed and was told that he must pay the taxes and sewer assessments which had been paid by the defendants since the date of the payment of the last instalment of the principal. This the plaintiff refused to do and demanded the money paid for the conveyance; the defendants refused to return the money, and this action was brought. Were it not for the fact, that the delay in demanding a con [247] veyance or in insisting upon the defendants mating an absolute refusal was excusable, it is possible that the vendee’s right to rescind and with it the right to recover the money paid would have been barred. Under the circumstances of this case the statute has not run. Codman v. Rogers, 10 Pick. 111, 119,120. Campbell v. Whoriskey, 170 Mass. 63, 65. The defendants further say that the plaintiff should not recover because he did not offer to repay the amount paid by them for taxes. There is nothing in this contention. The defendants had the premises and the use of the land and the plaintiff’s money, and had agreed as a part of the contract for sale “to pay all taxes until deed is given.” In accordance with the terms of the report judgment is to be entered for the plaintiff in the sum of $372.12. So ordered.