Goodwine v. Morey

Elliott, C. J. The appellee alleges in his complaint that, he entered into a parol contract with the appellant, wherein-he agreed to sell the latter a tract of land; that part of the consideration was paid and possession of the land was taken: under the contract. It is not averred in the complaint that the appellee has any title to the land, or that his deed will convey any, and the averment as to the tender of the deed reads thus: “ That before the bringing of this suit the plaintiff executed and tendered to the defendant a good and sufficient deed of general warranty.” The prayer of the complaint is for a personal judgment, and for the enforcement of' a vendor’s lien. Our decisions decláre that where the vendor seeks to enforce-an executory contract for the conveyance of land, he must, have a perfect title to the land at the time the purchase-money becomes due, and must, also, tender a warranty deed to the purchaser. Small v. Reeves, 14 Ind. 163; Parker v. McAllister, 14 Ind. 12. In Mix v. Ellsworth, 5 Ind. 517, a great number of cases are collected, and it was there held that an action for the-recovery of purchase-money could not be maintained unless, a deed had been tendered; but in. most of the cases there cited the question arose on a plea, so that those cases cannot: be regarded as fully in point here. The question as it is here presented, however, came directly before the court in Melton v. Coffelt, 59 Ind. 310, and it was decided that the pleading-must aver a tender of a sufficient warranty deed, and that the tender must be kept good by bringing the deed into court or by an averment of a readiness and willingness to execute a deed that would vest title in the purchaser. Under the70 rule declared in the case last cited, the complaint must be held bad. There are other eases in our reports which declare a like doctrine. Cook v. Bean, 17 Ind. 504; Mather v. Scoles, 35 Ind. 1; Smith v. Turner, 50 Ind. 367; Sowle v. Holdridge, 63 Ind. 213 (218); Overly v. Tipton, 68 Ind. 410 (414). Filed May 20, 1887. Judgment reversed.