Laverty v. Hall's Administratrix

Dillon, J. i. specific I. As the demurrer questions the sufficiency of the petition, assuming the facts therein stated to be true, all of the materials of it have been set out in the statement. It is first claimed by appellant that the long delay by the appellee to pay for the lot, or to bring this suit, will defeat his right to a specific performance or to damages. [529] This will depend upon the circumstances as they may appear upon the trial. The views of this court on this subject will be found in Young v. Daniels, 2 Iowa, 126; Collins v. Vandever, 1 Id., 573, 577. It being alleged that plaintiff's assignor made valuable improvements, that time was not the essence of the contract, that the same has never been forfeited of rescinded, &c., we cannot say, as a matter of lav), that the plaintiff has so slept upon his rights as to deprive him of relief, if he otherwise shows himself entitled thereto. _tcn_ dlirII. But the main point relied upon by the administratrix to reverse the ruling of the District Court is, that the petition was fatally defective, inasmuch as it failed to aver that the plaintiff had ever tendered the balance of the purchase-money, or had ever brought the same into court. The rule on this subject is well stated by Weight, Ch. J., in Young v. Daniels, above cited, at p. 134: “There can be no doubt of the general doctrine that, before a vendee can ask a specific performance of a contract, he must have performed or offered to perform whatever the contract has made a condition precedent on his part.” * * “ But even this rule will not be found to be of universal application. One exception is, where the vendor has put it out of his power to comply,” &c. S. P. Collins v. Vandever, 1 Iowa, 573, 578. And see Olive v. Dougherty, 3 G. Greene, 371; Garretson v. Vanloon, Id., 128. The rules and requirements of courts of equity are founded in good sense. If Hall were living, and had not disabled himself from conveying, it would be unreasonable to have allowed the plaintiff to sue him without tendering the money, or at least bringing it, or offering to bring it into court, and paying all costs up to that time. The plain reason for this is that, until this be done. Hall would not be in default, and plaintiff should do equity before asking [530] that his adversary be compelled to answer to his complaint. But here Hall’is dead, and the plaintiff must come into court to get a title, and in such a case, it is sufficient that he brings the money into court when he files his bill. This we held in Collins v. Vandever, supra. Subject to costs, we might not deny relief, if in such a case there was an offer to bring the money into court when required, and the requirement of the court was promptly complied with. The liberal doctrine of courts of equity on this subject will be found stated and exemplified in the cases above referred to, and in Hayward v. Munger, Id Iowa, 516, 522; Rutherford v. Haven, 11 Id., 587. But where, as- in the case at bar, the vendor is dead, and by a sale to a third person ■ has disabled himself or his representatives from conveying at all, or at least until the respective rights 'of the vendee and such third person have been first judicially settled, we hold that it is sufficient for the vendee to aver, as was here done, “ that he is willing to pay if he can get a good title,” and to pray for a deed "■upon payment of the balance of the purchase-money.” The petition is framed with a double aspect, and properly so. If it turns out that the plaintiff is entitled to relief, and that Edenburne is not a Iona fide purchaser, then the court will order the plaintiff to pay in the money, and if he fails to do so, dismiss his suit. ■ If it falls out that the plaintiff is not, for delay or for other reasons, entitled to relief, the court will dismiss his action, and the money, if in court, would do the defendant no good. If it shall happen that Edenburne is a lona fide purchaser, for value, but that, as against his vendor, the plaintiff is entitled to damages, then there is no need that the purchase-money should be in court pending this litigation. On the facts stated in the petition, the administratrix has no right to receive the money if it were in court. Why should she,Then, object that it is not [531] there? When it is shown that she is entitled to it, the District Court will make short work of the plaintiff’s case,: unless the money be placed in court. The case is some- - what peculiar, but upon a careful consideration of. appellant’s argument and authorities, we have been unable to reach the conclusion, that the action of the court below was erroneous. The case, as made in the petition, is a reasonable, clear and well defined exception to the general rule as to the necessity of a previous tender and payment of the money into court. Affirmed.