187 F. 550 | 8th Cir. | 1911
(after stating the facts as above). When the lessee died in 1903, he had the possession of the land in question and the right to hold that possession, and to add to it the indefeasible title, by paying at any time during that year, or any other year for which the lease was renewed, $8,960, one-fourth in cash and three-fourths in five years, secured by a purchase-money mortgage upon the premises. In effect he was in the position of a mortgagor in possession after foreclosure and during the period allowed for redemption. The property was worth about $15,000 when he died. He had it, and he had the right to keep it by paying $8,960; but he was not under any obligation to take the land or to pay the money. Now, why have not his widow and his heirs the same right? Counsel for the defendants answer: (a) Because the option to purchase was personal to the lessee, for whose credit and financial responsibility, during the five years the payment of threé-fourths of the purchase price was deferred, the lessor contracted, so that the option died with him, and his heirs could not exercise it; (b) because the taxes of 1903 were not paid, and their payment was a condition precedent to the exercise of the option; (c) because, if the option survived,' it was personal property, it passed through Ankeny’s administrator to the widow and heirs jointly and the tender of the guardian alone was insufficient to constitute an acceptance of the offer; and (d) because a guardian cannot purchase land for his wards, his note was not a permissible sub
“Tlie covenants herein shall extend to and be binding upon the heirs, executors, and administrators of the parties to this lease.”
Now, this agreement contains a covenant of the lessor that the lessee shall have the option to purchase by paying one-fourth o f the purchase price in cash, “and balance of purchase money secured by a mortgage on above premises, with interest at 7 per cent, per annum payable annually, and payable in five years.” It contains no requirement that this mortgage or the note it was to be made to secure should be-that of the original lessee, and not that of his legal representatives in case of his death, or that it should be payable to or inure to the benefit of the original lessor, and not to his legal representatives in case of his death. On the other hand, agreements are found in it that neither the lessee nor his legal representatives shall assign the contract without the consent of the lessor, and that the lessor or his legal representatives may take possession upon default of the lessee at the election of the lessor. The lessor died in 1903. Suppose the lessee had defaulted. Would the administrator and heirs of the lessor have been deprived of their right to re-enter for the default because the lessor had not elected to do so before he died? It not, why should the heirs of the lessee be deprived of their option to purchase because the lessee did not exercise that option before he died ?
Counsel argue that the stipulation that the covenants of the contract “shall extend to and be binding upon the heirs, executors, and administrators of the parties to this lease” means that the covenants shall extend to the heirs, executors, and administrators of the parties bound
“That in case no default shall be made in the terms of this lease on the part of the party of the second part (the lessee), he may have the option to purchase.”
And counsel argue that because neither the lessee, nor his administrator, nor the heirs, paid the taxes of 1903, there was a default on their part, so that á condition precedent to the exercise of the option was not fulfilled. The condition precedent here, however, was not the payment of the taxes, but the agreement to pay them, and the penalty in case of default. The lessee made the agreement, and thereby complied with the condition of the contract. No demand that he, his administrator, or his heirs perform this agreement and pay the taxes was ever made, and neither he, nor his administrator, nor his heirs, ever made default in the terms of the lease, although the fact was that through the mistake of the administrator they failed to pay these taxes prior to the commencement Of this suit. As soon as they discovered
There is another reason wh}- the failure to pay these taxes was not fatal to the claim of the complainants. The defendants refused to accept the $627.20 tendered them on January 1, 1904, and then and thereby repudiated the contract before the taxes of 1903 became delinquent, and before the agreement of the lessee to pay them matured, and from that time the issue between those parties has been, and still is, whether or not the heirs of the lessee had the right to exercise the option covenanted by the contract. The refusal of the defendants to accept that rent for a renewal of the contract was the first breach of the agreement, and he who commits the first breach of a contract cannot successfully charge the other contracting party with an actionable default for a subsequent failure on his part to perform his promises. Norrington v. Wright, 115 U. S. 188, 204, 205, 6 Sup. Ct. 12, 29 L. Ed. 366; Cresswell R. & C. Co. v. Martindale, 11 C. C. A. 33, 38, 63 Fed. 84, 89; National Surety Co. v. Long, 60 C. C. A. 623, 628, 125 Fed. 887, 892.
3. The heirs of the lessee tendered the note of the guardian and his mortgage upon the property for three-fourths of the purchase price and cash for one-fourth thereof, and also tendered the entire purchase price in cash. The objection that this tender was insufficient, because the widow did not sign the note, is untenable, because she signed the mortgage, and by the terms thereof released all her interest in the premises, so that the guardian’s note and mortgage gave the security stipulated in the contract. This objection was not made at the time of the tender. The sole reason then given by the defendant for the rejection of the offer was the unsound one that since the death of the original lessee his heirs were not entitled to exercise the option. In view of the fact that the widow thus signed the mortgage and released all her interest in the premises, it is not material, as has been before remarked, whether the right to exercise the option was real or personal property, because all the rights and interest therein and, thereunder have passed to the widow and heirs of the lessee, and they are all parties to this suit.
The decree below- must accordingly be reversed, and the case must be remanded to the court below, with instructions to render a decree in favor of the complainants.
And it is so ordered.
For other cases see same topic & § ndmbek in Dec. & Am. Digs. 1907 to date, & Itep’r Indexes