Watson v. Sawyers

Chalmers, J., delivered the opinion of the court. A bill for specific performance of a contract of sale of land, [66] evidenced by title bond, was demurred to, because there bad been no previous tender of a deed. The defendants were nonresidents, and a deed was filed and tendered with the bill. This, we think, was sufficient. It is well settled that an obligation to tender money or any merchantable commodit}1- is excused where the party to whom it is to be made is beyond the jurisdiction. We see no reason why the principle should not apply to the tender of a deed. Co. Litt. 210 ; 2 Parsons on Contracts, 650; Howard v. Miner, 20 Maine, 325. The bill alleged that the defendants had allowed the land to become forfeited to the State for taxes, and that the complainant had been forced to buy it from the State in order to enforce his claim for the purchase-money; and it therefore prayed that the defendants’ equity be subjected to a repayment of the sum so expended. This was demurred to, on the ground that the complainant, being the owner of the legal title, was liable for the taxes. The vendor by title bond holds the legal title only as trustee for the vendee and as a security for the purchase-money, while the beneficial interest vests in the vendee. The latter, therefore, in the absence of some special stipulation or exceptional circumstances, is liable for the taxes. Bradford v. Bank of Tennessee, 13 How. (U. S.) 57, 64. If there were such stipulation or circumstances in the case at bar, they must be set up by answer. Becree reversed and demurrer overruled.