Shreck v. Pierce

Woodward, J. This was a bill to enforce the specific performance of a contract for the conveyance of certain lands, which for convenience are numbered and referred to, as in the statement of the case: 1st. The southeast quarter of northeast quarter section 36, town 88 north, range 5 west; 2d. The northeast quarter of southeast quarter of the same section ; 3d. The southeast quarter of southeast quarter of the same section; 4th. The northeast quarter of northeast quarter of section 1, town 87 north, range 5 west; 5th. The southwest quarter of northwest quarter section 32, town 88 north, 4 west. The contract of sale was made by John W. Pierce, and was to make good title, and to convey with warranty deed, upon the payment of one hundred and fifty dollars down, and eight hundred and fifty dollars on the 1st of May, A.D. 1854. No default is found on the part of the complainant, and no good reason for non-performance on the part of the respondents, and therefore, the decree of this court must be in affirmance of that of the court below. The making of the contract of sale is denied by no one, nor is there any specific ground for defence set up, unless it be that the petitioner did not perform his part punctually; or that he afterwards declined performance, when the respondents, or some of them, wereyeady; or that the principal respond — 359 — ent, John W. Pierce, had not the title, and, therefore, could not perform. The last of these implied or supposed grounds of 'defence, aims to throw the complainant off from the claim of specific performance, to an action of damages for non-performance. We are inclined to the opinion, that a specific performance is the just and true remedy, dictated by the actual state of the case. It will be necessary to look at the facts of the case, and at the position and relation of the respective parties defendant, somewhat in detail. The contract itself requires no comment. On the 1st of May, 1854, the day for payment and performance, the complainant went to the house where the respondent, John W. Pierce, resided, with eight hundred and fifty dollars in gold, to pay on the contract, upon receiving title. This is only formally denied, whilst it is proved by the testimony of Smith, Paul, and Barker, the first of whom actually counted the money, and the others saw it. The complainant did not find John W., but saw Edward, with whom John lived, told him his business, and offered the money. Edward replied, truly enough, that he had nothing to do with the matter, and could not receive the money. But there is an attempt to show argumentatively, that petitioner knew that John was absent at the time. This is not very clearly shown; but what if he did know it ? It was much better and easier for him, to do what was incumbent on him for that day, than to trust to proving the excuse for non-performance, namely, the absence of the respondent, John W. It will be remembered, that the reason of this defendant’s absence was, that he had gone to Minnesota, to obtain from Clarence, an assignment of the contract with the fund commissioner, so as to enable him to fulfill his agreement with the petitioner. This respondent then alleges, that on his return he offered to perform, and the parties agreed to meet at Delhi, on the 15th of May, and complete the business; that he offered to execute a proper deed, and that the said Phoebe did make and tender a deed of the land held by her, but that complainant refused to pay the money, and receive the deeds. At that time, the obligor, John W., had the title to but one — 360 — of the forty acre tracts in himself; this was No. 5. The commissioners’ contract for Nos. 3 and 4, was assigned to him, but the title was not in him. Phoebe Bliss, who held the title to tracts Nos. 1 and 2, tendered a deed, which might be a sufficient substitute for qne from John. The effect of these offers, is nullified, perhaps, by the fact that John had not yet obtained the title to an important part of the land; but another and moré conclusive answer is, that the incumbrances by mortgage and otherwise, for loans ox for purchase money, were not yet discharged; nor was there any proposition that a portion of the plaintiff’s payment, should be applied to their liquidation. The legal effect of contracts to make title, or to deliver a deed to land under a contract of purchase, is generally that the vendor shall make a good title. As a general rule, it makes but little difference what the precise terms of the contract are — whether the vendor agrees to make title, or a good title — or to make a deed, or a warranty deed — if it appears that he is negotiating to sell at a sound price, to be paid, or part paid, at the conveyance. In such cases, usually, the vendor, without a nice' examination of words, is understood to agree for a good title, and the vendee cannot be put off with merely a good deed. This rule, however, does not preelude those cases where the vendee appears to be purchasing the vendor’s title, such as it may be. Aiken v. Sandford, 1 M. R. 494; Clarke v. Redman, 1 Blkf. 379; Clute v. Robinson, 2 J. 595; Jones v. Gardner, 10 Ib. 266 ; Judson v. Wass, 11 Ib., 525; Tucker v. Woods, 12 Ib., 190; Robb v. Montgomery., 20 Ib. 13. And the want of an existing capacity to perform, has been held a defence to notes and bonds. Tyler v. Torny, 2 Scam. 445 ; Kenard v. Bates, 1 Blkf. 172; Warner v. Hatfield, 4 Blk. 392; Blann v. Smith, 4 Blkf. 517 ; Contra, Coleman v. Sanderlin, 5 Humph. 562. The complainant went to Delhi, prepared to pay his money, and take the title, but he was justified in withdrawing, when he found the condition of things still existing. Besides this, between the first of May and the time of this meeting, an attachment had been levied upon nearly half of — 361 — the land, in a suit against the respondent John. This circumstance rendered it more than ever necessary that the petitioner should he careful in the transaction. Having done all that is incumbent on his part, he is not thrown into fault by these circumstances; and still another is to be regarded, which is, that at this meeting, the said Phoebe, with the offer of her deed, demanded two dollars per acre more than had been the contract price, for that part of the land .which stood in her name. We shall have occasion to revert to this again. It is then shown, that on the 11th of August, 1854, the complainant again tendered the money and demanded a fulfillment of the agreement, which was refused. This shows readiness, and that he did not consider the contract as abandoned. Within three or four months after this, the legal title to all the land is found in Clarence Pierce. In this state of things, we do not find any default in the complainant, by which he loses his rights under his agreement. On the other hand, there is not seen anything, which can be called a legal excuse for, or justification of, non-performance. The principal respondent, the vendor, had not the legal title in himself, and therefore had not the actual ability to perform, but the question, and it is the main question in the case, is, whether he did not so stand in relation to his co-defendants, as to be able to compel them to fulfill their contracts ? and whetb er the position or relation of them, or of some of them, is not such as to bring them within the reach of this complainant? To answer this question, we must look at them singly, and see what rights they had, and what obligations they were under. Clarke Bliss is but a nominal party, having no relation to the matter, but through his wife, formerly Phoebe Pierce, and he may be passed without further remark. Peter Case was the school fund commissioner, and is but a formal party. This answer discloses that, as such officer, he held a mortgage on part of tract No. 2, for the sum of fifty dollars. He omits to state by whom this was given, and the date of it. He also says that he held a mortgage on tract No. 5, for the sum of ninety-two dollars and fifty cents, dated July 20th, 1854, executed by — 362 — John W. Pierce. He does not state when either of these mortgage debts became due. Edward Pierce disclaims having any interest at any time, in the lands, in the bill mentioned, or any of them. He says that the commissioners’ contract with Clarence, was assigned to him by the latter, only to enable him to obtain title to another parcel, in which he was interested, and that having done this, he upon the order of Clarence, assigned the contract over to John W. Wo come now to Phoebe Bliss, who is more intimately connected with the matter of the bill. She held the title to tracts Nos. 1 and 2. Her answer is not a satisfactory one. She does not answ er fully and specifically. She admits making the bond to Clarence and John, but does not give the date, amount, nor term, for which the mortgage therein referred to, was given, nor by whom, nor the amount which she claimed as due her; and when exceptions were taken to the answer, she evades, or at least omits, answering to the most essential portions. But she states some things which assist us to a conclusion. Of this character is the statement that she did not object to John’s selling the land; that she offered the deed to complainant, on the 15th of May, at the request of John; and that she did demand seven dollars per acre for the land; and it further appears, from the papers in the cause, that on the 4th of December, 1854, she with her husband conveyed these two tracts to Clarence. Thus, there is sufficient to show, that Avhatever claims she had in regard to the land, were satisfied as far back as the 15th of May, and that from that time she only represented Clarence and John, or one of them. As to her demand of seven dollars an acre for the land, the only remark needed is, that her contract did not leave her at liberty to make such a requirement. She says she was to convey upon the payment of the mortgage and a certain sum due to her. This was irrespective of any rate per acre. But if she had the right to ask this, it was a question between her and the asignees in her bond. Shreek had nothing to do with it. The only effect of this demand, therefore, was to neutralize the tender of the deed to the complainant. We conclude, then, that Phcebe Bliss does not — 363 — stand in the petitioner’s way to a decree for a specific performance. We come to the consideration nest of Clarence Pierce’s position. He answers that on the 25th of October, 1853 (the time of the agreement), he held the fund commissioners’ contract for tracts Nos. 3 and 4, and owned Nos. 1 and 2; that he convej'ed to the said Phoebe, and took the bond to John and himself; that he caused the assignment of the commissioners’ contract for Nos. 3 and 4, to Edward, only to enable him to obtain title to a certain parcel, not embraced in this suit. This being done, no interest remained in Edward. As we understand his answer, he says he owned (at least the equitable, or contract title to) parcels Nos. 1 and 2, at the time when the agreement was made with Shreck, and that he assigned it to Phoebe after that. But. upon looking at the answer of Phoebe and Jc3hn, we are led into some doubt of the meaning. The answers of Clarence, John, and Phoebe, are none of them full, clear, and satisfactory. On the whole, the conclusion is, that Clarence so answers, and Phoebe does not contradict it, nor does she state anything inconsistent with it. She says that she “ is now,” (at the time of answering), the owner of the said lands. It would seem that on the 25th of October, 1853, Clarence was the equitable owner under the contracts of purchase from the fund commissioner, or otherwise, of all the tracts named in the bill, except No. 5, and that John had the title to that; that Clarence conveyed to Phoebe, and took the bond to John and himself; that he authorized John to sell the land in order to raise monej'; and that he stands under equal obligations with John, for the performance of the contract with Shreck. Perhaps little need be said in relation to the answer of John Pierce, as most of the remarks pertinent to it, have been made upon the other answer. He denies the offer of the $850, and denies that he refused performance until long after the first of May. He says he has no personal knowledge of Shreck’s coming to his residence and making a tender on the first of May, and therefore denies. It will be remembered that he had gone to Minnesota at the time. He disingenu — 364 — ously answers, that he saw no money, and that the petitioner never showed him any, referring to the tender on tbe 11th of August, 1854, when the proof shows, that complainant had the gold in a bag, which respondent did see, and that he was told that it was money, besides indications that it was such. But there are two thoughts presented in his answer, which require a little more notice. He says, and repeats with emphasis, that he informed the petitioner at the time of the contract, of the state of the title, and of the incumbrances. This forms no defence to the complainant’s claim. It does not lessen the respondent’s obligation under his contract, but only shows that he undertook to obtain the title, and to clear off the incumbrances. Another thought which he presents argumentatively is, that the complainant knew that he was acting as the agent of Clarence. By this, he means that he was so acting, as to a portion of the land only, for one parcel, No. 5, belonged to himself alone; of Nos. 1 and 2, he and Clarence held the equitable interest jointly, and of Nos. 4 and 5, Clarence was the real equitable owner, whilst the contract for those was assigned to John, to enable him to sell. The petitioner’s knowledge of this agency, constitutes no defence to the bill. Finally, during the autumn of 1854, and down to February, 1855, after this suit was commenced, we find the legal title to all these lands, including not only those of Phoebe, but those of John, to be centered and vested in Clarence. In all this transaction, Clarence and John are as one, with authority on the one side, and with full knowledge on the other. The complainant has been punctual, and has done all that was incumbent on him. The respondent, John, shows no valid reason for not fulfilling his agreement; and the other defendants by their own answers respectively, show that they hold no position entitling them to object to a performance, and Clarence is in substance identified with John W. Therefore, it is the opinion of this court, that the decree of the District Court should be affirmed, both generally and in detail.