Cook v. Reynolds

■ Campbell, J., delivered the opinion of the court. The case was tried and decided on the amended bill, and the propriety of the decree dismissing it is the question to be decided now. The case presented is, that on the 27th of January, 1866, Beynolds, who held the legal title of the lots in dispute, executed to appellant a bond conditioned to convey the title to him upon his payment of $100, due six months from that date, and evidenced by the promissory note of appellant given to Beynolds. Appellant was, at the date of the bond.and note, in possession of the lots, and. has remained in possession ever since. The averment of the bill is, that after taking the bond for title and giving his note, appellant concluded that he should not pay it, and by agreement between himself and Beynolds the matter was referred to arbitration, and the award was that appellant should pay $100 and receive a conveyance of the lots, and that he immediately [249] paid the money; but Reynolds failed to make a conveyance of the title, and died without doing it. He died in 1869, and no letters testamentary or of administration have been granted on his estate. His widow survived him, and she died ; and the bill is against the three minor children of Reynolds, to divest the title of the lots cast upon them by descent. The gravamen of the bill is payment by complainant of the $100, the payment of which was the condition on which he was to have title. All else in the bill is surplusage. If the stipulated purchase-money was paid, complainant is entitled to divest the title of the heirs of Reynolds; otherwise not. A careful consideration of all the circumstances in evidence has failed to satisfy us that the purchase-mone}'- was paid. But counsel insists that the note for the purchase-money is barred by the Statute of Limitations, and, therefore, is to be considered as paid. The note is not barred, the payee having died before the expiration of the time prescribed to bar it, and no letters testamentary or of administration having been issued. Code 1871, sect. 2162. But if the note was bai’red, that would not entitle the maker to a specific performance of the obligation to convey title on payment of the note. The bar of the Statute of Limitations is not payment. It is a defence against a demand for payment, — an extinguishment of the right of action, — but no lapse of time is an excuse for the non-performance of a condition precedent to the accrual of a right to call for performance by another of an act to be done on the performance of such condition. The distinction is too manifest for discussion, and we would have declined to remark upon the proposition of counsel but for the apprehension that without it our statement that the note of appellant is not barred might be misconstrued as containing an implication that if it were barred that would make any difference. It is clear that complainant was not entitled to divest the title of the heirs of Reynolds upon the theory of the actual payment of the purchase-money or the efficacy as payment of the bar of the Statute of Limitations, and to this [250] extent the decree of the Chancery Court is correct; but, according to our view, the result attained does not effect justice between the parties, under the peculiar circumstances of the case, as may be done under the pleadings and evidence with advantage to all; and although this view was not presented at the bar, and, we suppose, was not presented to the chancellor, we will direct the entering of the decree which secures the rights of all, as might be done under further litigation, at more expense, but can as well be done in this suit without such cost. It is clear that the right of appellant to pay the purchase-money and call for the title stipulated for in the bond for title is not affected by lapse of time. No right to call for a conveyance of the title accrued until payment of the purchase-money, which was the condition on which the obligation to convey was to arise. That payment has not yef been made. The Statute of Limitations has not yet commenced to run on the bond. The facts shown in this case furnish a reasonable explanation of delay in seeking a specific performance of the contract for title. About three years after the contract was made, Reynolds died intestate, and no administration has been had of his estate. Appellant continued in the possession and enjoyment of the lots until disturbed by the action of ejectment brought by the minor children of Reynolds, which aroused him to an assertion of his right to a conveyance of the legal title. Appellant is entitled to pay the purchase-money evidenced by his promissory note to Reynolds, due six months after the 27th of January, 1866, and to have the title vested in him. The heirs of Reynolds are minors, without guardians, and the appellant cannot pay to them the purchase-money and receive a conveyance by them of the title; but it is competent and proper for the Chancery Court to require the payment of the purchase-money for them and to divest the title of the lots, which, on such payment, should be divested, and vested in the appellant. The power of the Chancery Coui’t to deal with the money to be paid for the minor defendants is ample under [251] the Code of 1880, and thus the rights and interests of all parties will be conserved. We therefore direct the decree dismissing the amended bill to be reversed, and the cause to be remanded for an account to be taken of the amount due by the note of appellant for the purchase-monejr of the lots, and for a decree in accordance with this opinion, and all costs in this court and the court below to be taxed against the appellant.