137 Pa. 7 | Pa. | 1890
Opinion,
On the 10th of June, 1873, Nicholas McCullough, by articles of agreement, sold to Dr. John Boyd in fee a certain tract of land in Wharton township, Fayette county, containing 256 acres, the consideration being $1,350, payable, $100 in thirty days; $600 January 1, 1874; $200 April 1,1874; $200 July 1, 1874; and $250 on September 1,1874. The deed was to be made on full payment of the purchase money. Several payments were made upon the purchase money, at various dates between the date of the agreement and April 13,1874, amounting in the aggregate to $811. But no payments were at any time thereafter made.
It appears that, at the time of the contract, there were judgment liens upon the land in the name of McGregor, who was McCullough’s predecessor in title, to the amount of $1,700 or $1,800. These liens covered, not only the lands in question,
For some reason, Dr. Boyd ceased to pay the purchase money: he paid none after the 13th of April, 1874; it may be, as suggested by the plaintiff, that his failure was attributable to his discovery of the existence of these liens; but, whether he ceased to pay because of the encumbrances, or for want of ability to pay, or for some other reason, does not appear. In the year 1876, the other lands of McCullough already referred to were sold upon foreclosure of the mortgage thereon; the tract of 256 acres was seized and sold at sheriff’s sale, in satisfaction of the judgments mentioned, and the plaintiff was evicted by the purchaser. This suit is brought to recover back the $811 paid upon the contract, as upon a rescission thereof.
If the purchase money due and owing by Boyd had been sufficient, or more than sufficient, to satisfy the encumbrances, that would have been a proper application of the money; and, if he had failed so to apply it,-and suffered a sheriff’s sale of his property, he would certainly have no equity to complain of the loss of what he had paid. If he had become the purchaser at the sale, under such circumstances, he would have remained liable to McCullough for the residue of the purchase money on the footing of his contract; even if a stranger had become the purchaser, Boyd’s liability would have depended upon the inquiry whether or not, at the time of the sale, he had in his hands, of the purchase- money due and unpaid, a sum sufficient to extinguish the encumbrances : Garrard v. Lantz, 12 Pa. 192. But the amount of the encumbrances against the land in the name of McCullough, was considerably in excess of the purchase money unpaid, and, as it was McCullough’s duty to remove
It does not follow, however, that Boyd has a right of action to recover back what he had paid; this depends upon other considerations, to which we will now refer. It will be observed that, at the time of the sheriff’s sale, Boyd was himself in default. The purchase money was all due, and a large amount thereof was unpaid. His payments had been made with the record open before him, and no implication of a promise to repay the money could arise, except upon full compliance with his contract. He had not demanded his deed, nor is it shown that he was ready and willing to pay, at any time, the amount in arrears. It was in his power, notwithstanding the encumbrances, to tender performance, and thus restore himself from the effect of his default in payment of the purchase mon ey. McCullough, upon payment of the purchase money, was certainly bound to remove the encumbrances, and if the tender or offer of the money had been coupled with a demand to that effect, he might have doneso. But non constat that Boyd would perform his contract; he may, from insolvency or other cause, have been wholly unable to pay it, in which case, notwithstanding the encumbrances, his equity was liable to be defeated, and his money lost. In order, therefore, to rid himself from the consequences of his own default, it was his duty to tender or offer a performance, and to demand his deed; having done this he would now stand upon a full compliance with his contract, and^would have a clear right to recover for the consequences of McCullough’s default. The time for payment of the purchase money and for the delivery of the deed having passed, without any payment of the money or any offer of payment, and without any tender of a deed or demand for the money, the time for performance became indefinite, but mutual and dependent whenever it should occur. Whichever of the parties first desired to enforce the performance was bound to regard his part of the contract as a condition precedent, and to perform, or'to offer performance, in order to enable him to enforce the contract : Irvin v. Bleakley, 67 Pa. 24.
In all these cases, as well as in the case in hand, it will be observed the element of fraud is wanting; where fraud exists, the rule does not apply : Bonner v. Herrick, 99 Pa. 220. But the general rule is, that, in the case of a contract containing concurrent conditions, or mutual and dependent covenants, either an offer of performance or of readiness to perform, by
The judgment is reversed.