Nolan v. Snodgrass

Cooper, J., delivered the opinion of the court. In effect, though not in form,'this is a bill for the specific performance of a contract made by Mrs. Snodgrass to convey the title of the lands in controversy to appellant’s intestate, without requiring payment of an unpaid part of the purchase-price. The complainant, it is true, does not ask to have the title conveyed by a deed, but he prays the cancellation of whatever claim may be asserted by her heirs at law, [798] as a cloud upon his intestate’s title, the effect of which would be to invest their title, if any they have, in him. His claim is that'the debt for the purchase-price is barred by limitation, wherefore, the title should be vested as though actual payment had been made. ■ For the purposes of considering this appeal, it may be conceded that Mrs. Snodgrass made a sufficient contract to convey the land, and that, by lapse of time, her heirs were precluded from recovering either the land or the purchase-price. If all this be conceded, it remains true that appellant could not invoke the interposition of a court of chancery without an offer to pay the unpaid purchase-money and interest, according to the contract of his intestate. There is no averment that the price has been in fact paid. The reliance of appellant is upon the fact that all remedy for the collection of the debt is barred by limitation, and that the bar of the statute is equivalent to payment. This position was denied in Cook v. Reynolds, 58 Miss., 244, in which case, the court, through Judge Campbell, said: “ But, if the note was barred, 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 defense against a demand for payment — an extinguishment of the right of action — but no lapse of time is an excuse for the nón-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 decree is affirmed.