Deardorff v. Dary

Milton, J. The demurrer was properly sustained. The answer fails to show any reason for defendant’s delay in obtaining title. It does not show any right on the part of the defendant to do anything after May 19,1890, toward the performance of the written agreement, which, by its terms, expired that day. It alleges that an oral understanding was had at the time the writing was executed as to-the manner in which title to the land was to be obtained by the defendant; that is, by purchase at the sheriff’s sale, after which [850] he would convey the land to plaintiff. The answer shows an entire failure on defendant’s part to carry out this oral agreement, and it is not claimed that he complied in any wise with the terms and conditions of the written contract. No waiver by plaintiff of its conditions is pleaded in the answer, nor is any claim of modification set up. We must, therefore, hold that the contract expired on May 19, 1890. Bishop on Contracts, § 1344; Cromwell v. Wilkinson, 18 Ind. 365; Potter v. Tuttle, 22 Conn. 512; Benson v. Shotwell, 103 Cal. 163, 37 Pac. Rep. 147. It would seem that if defendant had been careful or diligent he might have had the land sold under the judgment, and a sheriff’s deed executed, prior to the date named in the contract. The abstract of the judgment against John Deardorff and the plaintiff was filed on September 22, 1890, the day the sale was confirmed. The contract shows that plaintiff was a resident of Ellsworth County. It may be that the debt upon which that judgment was obtained was not in existence on or before May 19. It can be fairly inferred that the judgment did not then exist. Defendant’s own negligence caused the complications which his answer discloses. After the contract to convey had expired, he negligently caused, or negligently permitted, a conveyance of the land to be made to a third party. The moment the land was thus conveyed, a judgment creditor of the third party caused an execution to be issued upon a judgment, the abstract of which he had just filed with the clerk of the court. The land was sold under this execution and the debt of the third party thereby paid. The fact that plaintiff’s debt was incidentally discharged by those proceedings is interesting but not important. Counsel for plaintiff in error says that “Ellen Dear [851] dorff was from the moment of the making of the contract the owner of the equitable title to the land and had such an interest therein as could be sold on execution, being the owner of all the right Dary had.” If this were true at any time, it was not true after May 19, 1890, for the contract was then at an end, according to its terms. The answer shows no reason for considering it as still existing. We perceive no error in the judgment of the trial court, and the same is affirmed.