Sowles v. Hall

The opinion of the court was delivered by Boyce, Oh. J. This cause was heard on the pleadings and' master’s report, from which it appears that the mortgages given to Babbett and to the Ottauqueehee Savings Bank were foreclosed, and Edward A. Sowles, who held a subsequent mortgage» upon the same premises, was made a defendant in the foreclosure-proceedings. Decrees were entered in both of the suits, and the equity of redemption was allowed to expire. Sowles’ equitable interest in the agreements subsequently made with the owner of the title by which Sowles acquired the title did not have the-effect to reinstate his mortgage as a lien upon the property. If Sowles had an equitable interest in the property, the report shows that he had parted with his interest in all of it except-that portion that was deeded to the defendant Ida A. The oratrix cannot stand upon her ownership of the notes described in the mortgage to Sowles, for the reasons above stated and if she has any right under the bill to the relief pi’ayed for, it must be upon the ground that she has paid in a part of the-amount decreed to be paid to the Ottauqueehee Savings Bank, or that she is entitled to a specific performance of the agreement executed October 18, 1886. Whatever right the oratrix had by virtue of the payment made by her was merged in, and settled by, the contract of October 18th, 1886. Whether that contract is construed as-recognizing the right of the oratrix to redeem, or as giving her a light to purchase, the duty which it was made incumbent on her to perform in order to make the contract available was-expressed in clear and unambiguous language. By that contract the defendants agreed to sell and convey to the oratrix or hex-assigns the premises described at any time prior to January 1,. [253] 1888, upon tender to said Ida A., on or before that date, of the sum of $3,000 in money; and unless such a tender should be made on or before said January 1st, 1888, the agreement was to be absolutely null and void. The oratrix undertook to make the tender required in the manner reported by the master, but it is not seriously claimed that the tender was a legal one; and no such tender as the contract called for has ever been made. The only importance to be attached to the facts found in relation to the tender that was made, is as'tending to show a recognition by the oratrix of the necessity for making one. The right of the oratrix to relief depends upon the construction to be given to the contract executed October 18, 1886, and the acts of the parties under it. The oratrix had no equitable lien by virtue of the assignment of the notes described in the bill; and so the only right she had was the one secured to her by the contract. The contribution made by her to the payment that was made to the Ottauquechee Savings Bank, upon the decree in its favor, did not give her any equitable right to the premises described in the decree, and the contract of October 18 was evidently made to give her an opportunity to reimburse herself for the payment so made by a purchase of the property; and the terms upon which she was to be allowed to make the purchase were clearly and definitely stated. No such tender having been made as was required by the contract, is the oratrix entitled to have a specific performance of it decreed upon the offer made to perform on her part at this time ? That depends upon the question whether the time fixed by the parties for the making of the tender is to be regarded as conclusive. It was held in Longworth v. Taylor, 14 Pet. 372, that time may be of the essence of a contract for the sale of property, and that it may be made so by the express stipulation of the parties; and a large number of cases are cited in the notes to Seton v. Slade, in White and Tudor’s cases in equity, showing that to be the general rule in equity in England and this country. The distinction is noted that has been made on the point of the mate [254] riality of time between cases of proposed sale, and of pledge of property, like a mortgage. It was competent for the parties to make time of the essence of the contract, and they could not have done so in language more pertinent to express such intention than that used. The agreement was to be absolutely null and void unless the tender was made as agreed. The cases referred to by the counsel for the oratrix have generally been determined upon their peculiar circumstances, and in most of them the court have found that there was an express waiver of the requirement' as to time, or that there was evidence upon which a waiver should be presumed. There is no finding here that there was any express waiver, and although the master has found that E. A. Sowles understood, a short time previous to January 1, 188S, that the time for performance on the part of the oratrix would be extended, the fact is not found that it was extended; and the fact that E. A. Sowles, as counsel for the oratrix, within the time named for the performance of the contract made the tender which it is found that he did make, tends strongly to show that he did not then understand that the time had been extended. In Benedict v. Lynch, 1 John. Ch. 370, the contract contained an express stipulation that if the purchaser failed in either of his payments the contract should be void, and it was held that the parties had made time of the essence of the contract and that it might be laid down as a general rule that where the party who applies for a specific performance has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient excuse for his delay, the court will not decree a specific performance. 3 Pom. Eq. Jur. 457. No such excuse has been found by the master in this case, and specific performance cannot be decreed. If the oratrix has lost the right to purchase the property, it resulted from her own negligence, in not complying with the terms upon which she was to be allowed to exercise it, and she cannot invoke the aid of a court of equity to afford her relief for a loss so incurred. The decree of the Court of Chancery is affirmed, and cause remanded.