Morrison v. Wimberly

Vookhies, J. On the 10th day of October, A. D. 1851, C. H. Morrison conveyed to the defendant, H. F. Wimberly, a tract of land for the sum of seven hundred and twenty dollars, payable in two equal annual installments falling due on the first day of March, 1858 and 1859. Two notes were accordingly furnished by the vendee. Suit was instituted by the vendor on the 11th day of October, 1858, to cancel this contract of sale, on the ground alleged, that the vendee, notwithstanding amicable demand, had failed to comply with his obligation to pay the first note, which had matured several months past. This party filed an exception to the plaintiff’s demand, on the ground that the latter had not placed him in mora, which exception was sustained by the District Oourt, dismissing the plaintiff’s demand. No appeal was taken from this decree; but the plaintiff proceeded to put the defendant in default, and brought the present action, which is substantially the same as the previous action. After the institution of this suit, the defendant offered to the plaintiff to make him a tender of payment in gold pieces; but the latter declined receiving the money. Giving Ml effect to the tender made by the defendant, the case is with the plaintiff. “ After the debtor has been put in mora, his offer to execute his engagement comes too late, and cannot be listened to. 6 Toullier, No. 255.” Moreau v. Chauvin et al., 8 R. 161. Toullier says : “ S’il ne paye pas á l’instant, la résolution est irrévocablement aequise au vendeur, sans que l’acquéreur puisse purger la demeure par des offres tardives postérieures au demandement. La sommation a le méme effet que le pro-tét, qui n’est pas autre chose que la sommation destinée á constaten le défaut de paiement d’un billet.” C. C. 1901; Stephens v. Chamberlin, 5 An. 656. But there is provision made by the Civil Gode on the subject of the dissolution of sales of immovables, to the effect that this remedy is summarily granted, “ when there is danger that the seller may lose the price and the thing itself. If that danger does not exist, the Judge may grant to the buyer a longer or shorter time, according to circumstances, provided such term exceed not six months.” C. 0. 2540. The evidence justified the District Judge to exercise his discretion in allowing the defendant time to pay the price of the sale, as there was no danger of the vendor losing either the property sold or the price itself, as exhibited by the tender made by the defendant to the plaintiff on two occasions since the institution of the present action. [714] We are not satisfied that these tenders were made in such a manner as to throw the costs upon the plaintiff. Besides, the extension of time prayed for by the ven-dee would seem to preclude him from being relieved in that respect. It is proper to state, that the delay granted by the District Judge has already expired. As the defendant appears before this court as appellee, further time should be granted to him to pay the amount due to the plaintiff. It is, therefore, ordered and decreed, that the judgment of the District Court be amended so as to read as follows, to-wit: It is decreed, that the defendant deposit with the Clerk of the District Court, on or before the 20th day of the month of August next, the amount of capital and interest due on the notes given by him to the plaintiff for the purchase of the property in controversy; and that, in case of his failure so to do, that the plaintiff do have judgment for the cancellation of the said contract of sale. It is further decreed, that the defendant pay the costs of both courts.