Mullin v. Bloomer

Weight, J. We think complainant was entitled to a judgment upon his note and an order foreclosing defendant’s equity in the premises. The cases in this State bearing upon the questions involved and sustaining more or less strongly this view are as follows; Woods v. Morgan, Morris 179; Clark v. O’Loughlin, Ib. 375; Cunningham v. Depew, Ib. 463 Brainard v. Holsaple, 4 G. Greene 485; Armstrong v. Pierson, 5 Iowa 317; Young v. Daniels, 2 Ib. 126; Matthews v. Gillis 1 Ib. 242; Wright v. LeClaire, 3 Ib. 221; Blair v. Marsh, 8 Ib. 144; Collins v. Vandever, 1 Ib. 573; Brink v. Morton 2 Ib. 411; Walters v. Miller, 10 Ib. 427; In this case it was said; “ To rescind a contract the law requires some positive act by the party who would rescind, which shall manifest such intention and put the opposite party on his guard, and it then gives him a reasonable time to comply. It will be observed that there is no pretence that respondent ever offered to perform the contract on his part, or that complainant ever refused to make the deed. Nor is it pretended that complainant could not comply with his bond, by reason of defect in his title, or the like. Nor again does the answer state that respondent about the time the deed was to be made or soon thereafter,' give notice of his intention to consider the contract at an end. True it is stated that he at some time offered to surrender the land, but when he does not state, and we do not know. Prom the manner of- its statement, it is fairly inferable that it was about the time of the tender of the deed and the commencement of this action. It is certainly fair to conclude, that if at a time m&re favorable to respondent he would have so stated. All there is [365] of the case then is this: Respondent for thejots purchased gave to complainant his negotiable promissory note and took from him a bond for a deed, to be made upon the payment of the note. The note was not paid, nor was the deed made. Each party remained inactive for two years; complainant then sought his purchase money, and in doing so tendered a deed as required by his bond. It was no more the duty of complainant to manifest his intention to hold respondent to the performance of the contract, than it was of respondent to pay the money and demand his deed, or do something to indicate to complainant that he had abandoned the contract, (granting that he could do so.) Respondent could not by merely remaining silent treat the contract as at end and avoid the payment of the purchase money. Now if it appeared that complainant, by reason of a defect in his title, was unable to make the deed and that respondent, acting upon this condition of things, had in any manner indicated his intention to abandon the contract, the position of appellant would be more plausible. And especially would this be so, if pending the defect in title which might subsequently be perfected, the property had greatly depreciated in value. Eor as it was not in the power of vendor to comply with his agreement, neither was the vendee compelled to part with his money, and as a consequence, if there was a depreciation the vendee in so far as he was damaged thereby, should be compensated for his loss. And the cases cited by appellee upon the subject .of damages arising from the deterioration of the estate, will bo found to be of the character just indicated. Thus in Foster v. Deam, 3 Madd. 394, the completion of the contract was delayed by difficulties in the title. So in Ferguson v. Tadman, 1 Sim. 530, one of the conditions of the sale was that the. purchaser was to .be entitled to the possession of the farm at Michaelmas, 1818. He accordingly attended there on the day named for the purpose of receiving such possession, but the tenants refuseolo quit. Thepurcha [366] ser then gave the vendor notice that he should require him to reimburse him any loss on this account and that he was ready to complete his purchase. The vendor then filed his bill, for a specific performance, making the tenants who refused to deliver possession, parties. On this state of facts the purchaser was allowed the amount of the deterioration of the estate, pending the suit. And these are the cases cited to support the text in 1 Hilliard on Vendors 205, 6. Nor does the text sustain appellant, in a case where the failure to complete the purchase, is chargeable to the neglect to pay the purchase money. To make the vendor liable for such depreciation there must be some fault on his part, other than a mere failure to make the deed, without being requested so to do. The Code sections 2094-5, gives to the vendor the right to file his petition and ask the court to compel the vendee to perform his contract or foreclose and sell his interest in the property. And this he may do whether time is or is not the essence of the contract; and in such cases, the vendee for the purpose of foreclosure shall be treated as a mortgagor and his rights may be foreclosed in a similar manner. These sections it would seem sufficiently meet the objection of appellee, that ho had no interest in the property to foreclose or sell. This determination in his own mind that he would abandon the contract, did not divest his interest in the property. Nor did his subsequent offer to surrender all claim or right to it have that effect. The vendor held the legal title, but in trust for the vendee. The vendee, in equity held the purchase money, but in trust for the vendor. The outstanding title bond invested the vendee with an interest which could be reached in this proceeding, in a manner similar to the foreclosure of a mortgage. (Blair v. Marsh, 8 Iowa 144.) In this case it is said that by virtue of the statute the vendee is to be treated, for all the purposes of the suit, as a mortgagor and his rights as such may be foreclosed and sold. (See Pierson v. David, 1 Iowa 34; Page v. Cole) 6 Ib. 153.) [367] Reversed and cause remanded with directions to enter a decree in accordance with this opinion. Reversed.