Brewer v. Thorp

Smith, J. This was a bill in chancery to obtain the specific performance of a contract for the sale of a tract of land. The bill alleges that, on the 11th of November, 1845, Israel Thorp, the defendant, was the owner of the tract of land in question, and sold the same to his son, Greenberry Thorp, for a sum, the precise amount of which is unknown to the complainant; that said Greenberry had paid the full amount of the purchase-money, except 50 dollars, which was to have been paid in cash on or before the 25th of December, 1846, and three months’ labor, which was to [263] have been performed by the said Greenberry on the farm of the said Israel, and as to which no definite time was fixed. A title-bond executed by the said Israel to the said Greenberry, is also set out. This bond is in the penalty of 300 dollars, and is conditioned that said Israel, or his heirs, shall, on or before the 25th of December, 1846, at the request of said Greenberry, or his assigns, make a good deed for said land to the said Greenberry, or his assigns, and shall, in the meantime, permit said obligees to remain in possession. It contains no stipulation as to the payment of purchase-money. The bill alleges that, on the 10th of December, 1846, the said Greeriberry assigned said bond to the complainant, the latter agreeing to pay the 50 dollars remaining due, and also the balance due on the work remaining to be done by the said Greenberry for the said Israel. It is also alleged that the said Greenberry had performed one and a half months’ work pursuant to the contract, and had been hindered from performing the balance; but it is not stated how he was so hindered. The complainant avers that since the expiration of the time at which said Israel was to make the deed, to-wit, on the 18th of January, 1847, and at divers other times, the complainant called upon him, informed him that he held the title-bond, and requested a deed; and that the complainant tendered him 71 dollars, and now brings that sum into Court for him, and also tendered him a deed to execute, and that he refused to do so. The bill further alleges that at the time of the sale to Greenberry, there was a mortgage to the school commissioner to secure the payment of 75 dollars, which then was, and still is, an incumbrance on the land. Prayer, that said Israel be required to pay said mortgage-debt and execute a deed to the complainant. The bill was demurred to, for want of equity, and because Greenberry Thorp was not made a party. The Court sustained the demurrer, and then ordered the bill to be continued over to give the complainant time [264] to amend by making the said Greenberry a party. At the next term, the complainant having failed to amend, the bill was dismissed. D. Kilgore, for the plaintiff. B. McClelland, for the defendant. We think the bill was rightly dismissed, on the ground that it does not show a sufficient performance of the contract set out, on the part of the vendee, to entitle the latter or his assignee to enforce a specific performance by the vendor. If it was a part of the contract of purchase, as the complainant himself alleges it was, that the vendee was to perform a certain amount of labor for the vendor, the tender by the complainant of a sum of money at the time mentioned in the bill, was not an equivalent, at least unless the performance of the work was prevented by the vendor. It is not charged that the vendee was hindered from performing the labor by any act of the vendor, and as we consider the bill fatally defective in this particular, it is unnecessary to examine any other objection made to it. Per Curiam. The decree is affirmed, with costs.