Klyce v. Broyles

Harris, J., delivered the opinion of the court. Plaintiff in error filed his bill in the Chancery Court of Tishe-mingo county: alleging that on the 16th October, 1855, he sold a tract of land to defendant; that said defendant at the time paid all the purchase-money except the sum of $175, to secure which defendant executed his note under seal, due the 1st January, 1857. And plaintiff in error at the same time executed his bond conditioned to make titles thereto on the full payment of the purchase-money due therefor. That plaintiff in error has been ready and willing at all times, and still is, to make the said defendant titles, upon the payment of the purchase-money, and praying that the land may be sold to pay the balance due. To this bill the defendant filed his demurrer, upon the ground [525] that the “ complainant had not made or tendered to defendant a deed for the land, and demanded the purchase-money, so as to put the defendant in default before filing said bill.” The demurrer was sustained, and the cause is brought here by writ of error to reverse this judgment. It is insisted that the allegation, that the complainant is ready and willing, and has been at all times and now is, to make titles upon the payment of the purchase-money, is sufficient under the intimation of the court in Eckford v. Halbut, 30 Miss. 273. The rule, as stated in Eckford v. Halbut, is, that where the covenant is to make title upon the payment of the purchase-money, the covenants are mutual and dependent, and neither party can insist on performance of the contract without an offer or tender, of performance on his part. “The question is,” say the court, “ are the vendees in default in making payment ? The answer is, they are not, until a tender of •performance by the other party.” If not in default, of course they are not liable to suit; and hence, in that case, the demurrer to the bill was sustained. .If the court had meant to say that an offer in the bill to perform, or an averment of willingness and readiness to perform, would have been sufficient, the demurrer must have been overruled as in the court below. The cases are numerous and uniform in this court to this point, and we can but express surprise to see the question again mooted at this late day. See Prophet v. Robinson, 34 Miss. 141; Arthur v. Pearson, 32 Ib. 131; Hill v. Samuel, 31 Ib. 307; McAlister v. Moye, 30 Ib. 258; Eckford v. Gates, Ib. 273; Walton v. Wilson, Ib. 576; Johnson v. Jones, 27 Ib. 498; Hudson v. Watson, 26 Ib. 357; Standifer v. Davis, 13 S. & M. 48; Feemster v. May, Ib. 275; Mobley v. Keys, Ib. 677; Wadlington v. Hill, 10 Ib. 560; Liddell v. Sims, 9 Ib. 596, 612; Johnson v. Beard, 7 Ib. 214; Peques v. Mosby, Ib. 340. If some fifteen casesj uniformly holding the same principle for a series of as many years, do not entitle us to'regard a' question as settled, then we may never hope to have any question so regarded in this court. Let the judgment be affirmed.