Beaty v. Harkey
10 Miss. 563
Miss.
1844
Check Treatment
PER Curiam.

Tо an action founded on two writings obligatory, amounting, in the aggregate, to four hundred dollars, the plaintiff in error pleaded specially, in substance as follows: That on the day of the date of the notes, the ‍‌​​​​​‌‌​​​‌​‌​‌‌‌​​‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌​‌‌​‌​‌‍defendant in error and the plaintiff entered into an agreement in writing, under seal, by which, after reciting that the defendant in error had sold to the plaintiff in error a lot of land in Aberdeen, taking *565therefor the notes sued on, it was аgreed between the parties, that if the plaintiif in error should fail to рay the notes, at maturity, he should pay to the defendant in error rent, for the time he should be in possession of the lot, at the rate of fifty dollars a year, and that he should also pay interest on the notes, from the time they should become due, at the rate of eight per cent, рer annum; and also that ‍‌​​​​​‌‌​​​‌​‌​‌‌‌​​‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌​‌‌​‌​‌‍the vendor should pay for any improvements, which the vend'ee might put on the lot, the value to be settled by arbitrators, in сase the vendor should be compelled to take it back. The plea concludes, by averring a failure to pay the notes at mаturity. The plaintiif below demurred, and the court sustained the demurrer, and gavе a final judgment, and the question is, whether the demurrer was correctly sustainеd.

, The plea is not good, unless the agreement is to be construed as operating so exclusively in favor of the plaintiif in error, as to leave it entirely discretionary with him, to aifirm or dis-affirm the contract. That suсh is its legal effect, or that it is expressive of any such intention, is a pоsition entirely unwarranted. It is quite apparent, on the contrary, that thе vendor looked to his own security. Ifamounts to nothing more than an agreement to convey, on payment of the purchase-money. The single question is, did the vendee agree to purchase, and the vendor agree to sell? Is it a contract binding on both parties ? It surely could nоt be pretended, that the vendee could not have coerced a specific performance, ‍‌​​​​​‌‌​​​‌​‌​‌‌‌​​‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌​‌‌​‌​‌‍on payment of the рurchase-money; and if that be true, then the vendor is entitled to his remedy at law; for all such contracts must have mutuality. The agreement is, in substance, that if the vendee should fail to pay the purchase-money, then thе contract of sale should be void. A stipulation in a contract, that in case the vendor cannot convey, or if the purchaser shall fail to pay on the appointed day, then the contract shall be void, does not enable either party to vacate the аgreement, by failing to perform his part of it. Sugden on Vendors, 44. In such casеs, the purchaser may avoid the contract, if the seller do not mаke a title, and the seller may avoid it, if the purchaser do not pay the *566money; but the purchaser cannot say, “I will not pay,” and thereby avoid the contract. The default of one party confers on thе other the right to rescind. Sugden on Yendors, 261. The reservation of rent did not change the contract into a loan; it was still a contract of sаle. Ibid. ‍‌​​​​​‌‌​​​‌​‌​‌‌‌​​‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌​‌‌​‌​‌‍260. The agreement to pay interest, evidently looked to a сonfirmation of the contract, and not to a rescission; but if it were even a penalty, the plaintiff in error could not get rid of the contrаct, by paying the penalty. Ibid. 259. The demurrer, then, was properly sustained.

But on sustaining the demurrer to the plea, the court erred in giving ‍‌​​​​​‌‌​​​‌​‌​‌‌‌​​‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌​‌‌​‌​‌‍final judgment for the рlaintiff; the judgment should have been respondeat ouster, (PI. & PI. Dig. 615, sec. 8,) and for this error the judgment must be reversed, and the cause remanded.