Rollins v. Thornburg

Dillon, J. 1. Vendor and vendee: tender of deed. On the trial, the plaintiff read in evidence the note upon which his action was based. The only evidence offered by tbe defendants was the ,. original petition oí the plaintiff, which was withdrawn wlien tbe amended petition was filed, and which in substance alleged “ that the note in suit was given for the purchase-money due upon certain described real estate, which the plaintiff, at the date of' the note, sold to defendants; that at the time of the sale, he exe [390] cuted to defendants a deed of the real estate which was placed in the hands of one Thomas, to be delivered to the defendants on the payment of the note; that defendants went into possession, and have ever since continued in the occupancy of the property.” The only argument made by the defendants to reverse the judgment against them, is that, agreeably to the rules laid down in School District v. Rodgers (8 Iowa, 316), Berryhill v. Byington (10 Id., 323), and Winton v. Sherman (20 Id., 296), the decision should have been in their favor. These cases do not apply. Here the parties made a special contract, which was that the plaintiff should execute and deliver a deed, and place the same in the •hands of Thomas, to be delivered to defendants when they paid the note. . Plaintiff performed his part of the contract — made and ■delivered the deed. The next step is one to be taken by ■the defendants, and that is to pay the note. . This they have not done. When they do so they will be entitled, by virtue of their contract, to the deed in the ■hands of Thomas. It is to be presumed that Thomas will then deliver it to them, and this will give them the recpiired evidence of title. If he does not, they can compel him to do so. They thus get all they stipulated for in their contract. Certain it is, that under these circumstances there was no obligation on the plaintiff to execute and tender (mother deed, as an essential, prior condition to p recovery upon the note given for the purchase-money. The evidence did not sustain the defense pleaded. The court, thereupon, correctly adjudged the cause in favor of the plaintiff. Affirmed.