193 Iowa 184 | Iowa | 1922
— On March 10j 1919, the plaintiff and the defendant W. J. Edgar entered into a written contract, by the terms of which Edgar undertook to sell and convey to plaintiff a certain farm of 194.17 acres in Washington County for the agreed price of $60,551.92, payable $5,000 down, $15,551.92 on March 1, 1920, and the remaining sum of $40,000 to be evidenced by plaintiff’s note, dated March 1, .1920, payable in five years, with interest annually at 5% per cent, and secured by mortgage on the property. Conveyance was to be made by warranty deed on March 1, 1920. It was also provided that destruction of any of the 'improvements upon the property should be the loss of
“In the event the defendants, at any time before the further decree of this court is rendered, fixing the value of said homestead, tender a good and sufficient warranty deed ’to the*187 plaintiff, covering the whole of the real estate described in the contract upon which this suit is brought, then the plaintiff is hereby directed to pay the entire contract price in the manner and form as required by said contract; and in addition thereto, the plaintiff shall pay the defendant the sum of $5,400, to cover the cost of the building of the barn which has been erected on said premises since the execution of said contract; but the plaintiff shall be entitled to and is hereby given the insurance which has been or hereafter may be received, to cover the loss sustained by reason of the burning of a barn on said premises after the signing of the contract sued upon. The plaintiff shall be allowed to assume and pay the mortgage now resting upon said premises, together with accumulated interest thereon, and any other incumbrances and liens against said real estate, and to deduct same, first, from the cash payment to be made by him, and second, any balance in excess thereof, from the mortgage to be executed by him under any settlement which may be made under the terms of said contract and this decree. * * * It is further adjudged and decreed that the plaintiff herein is entitled to the possession of all of said real estate except such as may be selected and platted as a homestead, as herein provided, and he has been entitled to the possession of the same since the 1st of March, 1920, and the right is hereby reserved to him to prosecute an independent action for the value of the use of same from the 1st of March, 1920. Said cause is continued for further hearing as to the value of said land and homestead and other matters deemed necessary by this court, and for final decree, and to determine the rights of the parties agreeably to the prayer of the petition as amended.”
The defendants appealed from this decree, and filed a supersedeas bond to stay proceedings thereunder. The plaintiff also appealed; but, in submitting the appeal, raises only two objections to the decree. These objections are to that provision which requires plaintiff to reimburse the defendant for the cost of rebuilding the barn, and to the further provision which allows plaintiff to assume and pay the existing mortgage on the land, as part of the purchase price. After these appeals had been taken, and before their submission, the defendants, W. J. Edgar and Bessie P. Edgar, husband and wife, united in executing and
“To the plaintiff, David Blankenhorn: You are hereby notified that the defendants, W. J. Edgar and Bessie P. Edgar, have elected and do hereby elect to comply with the decree of the district court of Washington County, Iowa, in the above entitled cause, and they hereby tender and offer to convey to you the entire tract of real estate, including the homestead mentioned in the contract of sale upon which said decree of specific performance was entered. And they hereby tender and offer to you a warranty deed for said real estate, as provided in said decree, which said deed was executed by them on the 17th day of November, 1921; and if for any reason said deed should not be in exact'compliance with said decree, they hereby tender and offer to correct the same, and to make the same to fully comply with said decree, or they hereby tender and offer to execute any other deed that will fully comply with said decree. And you are further notified that they have abandoned and do hereby abandon their appeal to the Supreme Court of Iowa, and will move for an affirmance of said decree and for judgment for the purchase price of said real estate, as provided in said decree. These defendants hereby tender ahd offer to comply with all the requirements of said decree, and tender and offer to do all things required to be done by them by said decree. Signed this 2d day of January, 1922. W. J. Edgar, Bessie P. Edgar, Defendants.”
To this notice and tender, the plaintiff responded with a written refusal, in words following:
“To W. J. Edgar and Bessie P. Edgar: You are hereby notified that the undersigned has elected to and does hereby refuse to purchase and accept from you a conveyance of the 40 acres heretofore or hereafter claimed as your homestead, and included in the farm described in the contract entered into by and between said W. J. Edgar and the undersigned David Blankenhorn, of date March 10, 1919. You are further notified that any option to make such sale and conveyance of your home*189 stead given by the decree of the district court of Washington County, Iowa, entered at the September, 1920, term of said court, in the case of David Blankenhorn v. W. J. Edgar et al., from which decree an appeal has been prosecuted by you and is now pending in the Supreme Court of Iowa, is hereby withdrawn, dismissed, abrogated, and terminated by the undersigned, and any tender by you hereafter of performance of such portion of said decree, or of any decree that may be hereafter rendered by the Supreme Court of Iowa, will not be accepted by the undersigned. You will therefore take notice and govern yourselves accordingly that, in the event of the affirmance, reversal, or modification of said decree by the Supreme Court of Iowa, and your failure to plat said homestead, the undersigned will proceed to have your said homestead platted and the value thereof determined as provided in said decree, and settlement will be made with you for the balance of said farm, exclusive of the homestead, in manner'and form as provided in said decree.
“David Blankenhorn,
“By Livingston & Eicher, his attorneys.”
After the service of these notices, the defendants filed a motion to affirm the decree of the district court, and to fix the time in which appellee must pay the amount due from him upon the contract of sale 'and decree of the court. The motion was taken under advisement, to be disposed of with the case. The agility with which these parties have changed front in the course of the litigation involves in some complication what would otherwise be a very simple case. It is to be regretted that the trial court did not withhold its decree until all the contentions arising out of this contract could have beeii completely settled in a single adjudication. As it is, there are left in suspense several matters, which may afford material for vexatious litigation. It shall be our effort in this opinion to eliminate, so far as possible, any excuse for prolonging a controversy in which there is no possibility, of profit to either party.
“However, this plaintiff hereby asks the court in its final decree herein to make such equitable adjustment with reference thereto as may be fair and just in the premises.”
In view of this declaration, and of the contract provision by which plaintiff assumed the risk of su'eh loss from the date of the contract, the trial court felt at liberty to adjudge him liable to the cost of the rebuilding, but gave him the benefit of the insurance. It must be said, however, that such allowance finds little or no support in the law. Defendant seems to have undertaken the rebuilding as an entirely voluntary matter, without notice to or request from the plaintiff. The fact seems to be that he construed the contract as allowing him to rescind or abandon it, upon payment of the liquidated damages therein provided for, and says that it was his purpose to pay the damages and keep the land. Unfortunately, the contract would not bear that construction. The contract imposed the loss on the plaintiff. Defendant was under no obligation, legal or equitable, to rebuild the barn for -the benefit of plaintiff, and in the absence of some request or consent,' expressed or implied, he could not charge the plaintiff with an expense so ■ incurred.
‘ ‘ The decree should be so modified as to make it clear that it is entirely optional with the plaintiff to purchase said homestead or not. The contract upon which said decree is based was absolutely void as to the homestead. The plaintiff could not enforce it against the defendants, and for this reason the defendants could not enforce it against the plaintiff; and the court by its decree could not give the defendants a greater right than they had under the contract.”
We think it must further be said that the declaration contained in plaintiff’s notice of refusal of the tender of a conveyance, to the effect “that any option to make such sale and conveyance of your homestead given by decree of the district court of Washington County entered at the September, 1920, term of said county, in the case of David Blankenhorn v. W. J. Edgar, from which decree an appeal has been prosecuted by you and is now pending in the Supreme Court of Iowa, is hereby withdrawn, dismissed, abrogated, and terminated by the undersigned, and any tender by you hereafter of performance of such portion of such decree or of any decree that may hereafter be rendered by the Supreme Court of Iowa will not be accepted by the undersigned,” is quite unavailing. A party may, of course, take exception to the court’s decree, and seek relief therefrom by appeal; but counsel will not contend that such party may avoid the effect of a decree by declaring it abrogated, or by proclaiming in advance that he will not yield to any adjudication or order “hereafter rendered” by the court. The courts are, of course, powerless to compel a purchaser to accept a tender of performance for which he himself prayed. The prize for which he so vigorously contended may seem less desirable, as it nears his grasp. It is for him to say whether the “game is worth the candle. ’ ’ He asked, for specific performance of the contract. By the decree of the trial court and by the surrender of the defendants,, he has just what he bargained for. He alone can decide whether he thinks the victory of sufficient value to justify him in accepting its fruits, or whether he will, by refus