40 So. 871 | Miss. | 1906
delivered the opinion of the court.
This is a proceeding in unlawful detainer. J. M. Bowling, the appellant, signed and delivered to T. J. Bowling, now deceased, the following paper:
“State oe Mississippi, Calhoun County, Aug. 11, 1904.
“This contract, entered into between J. M. Bowling, party of the first part, and T. J. Bowling, the party of the second part, is as follows: That party of the second part agrees to pay party of the first part one hundred and eighty-five ($185.00) dollars, with ten per cent interest, on or before November 15th, 1904, for which party of the first part agrees to make party of the second part a warranty deed to certain property in the above-mentioned state and county, and lying and being in the town of
*147 Vardanian, to wit, one house and lot, No. 4 in block 19 ; also lot 1 in block 19. (Signed) J\ M. Bowling.”
T. J. Bowling did not sign the paper, bound himself in no covenant, and no part of the money was ever paid, and with matters in this posture some months after the date for payment, he died. His widow and heir was in possession. She was repeatedly seen by J. M. Bowling, and requested to either restore the land, or pay the money, or to take time and pay rent for it. Finally she refused to do either, or to do anything unless compelled by the courts, not intimating that her refusal was because no conveyance was tendered to her.
Tender was unnecessary under these circumstances. All the cases requiring it are where the obligations under the writing were dual, or where they were made so by part or full payment, or ratified by the vendee by filing a bill to compel performance.
Reversed and remanded.