Brock v. Hidy

13 Ohio St. 306 | Ohio | 1862

Brinkerhofe, J.

The case presents two questions:

1. Was Hidy, the vendor, under the circumstances of the case, on the expiration of the seven years’ term of credit given, entitled to rescind the contract, and resume possession of the land ? And if not—

2. Are the plaintiffs entitled to a specific performance, by him, without first tendering or bringing into court the amount due Hidy for the purchase money of the land ?

The plaintiffs, by the levying of their attachments, became entitled to all the rights and subject to all the obligations of Martin L. Carr; and he, by his purchase from Solomon Carr, the original vendee, stood in his shoes; and the questions, therefore, are the same as if Solomon Carr were here, seeking a specific performance against his vendor, Hidy, who had resumed possession of the premises, and had attempted to rescind the contract as against him.

Ordinarily, time is not regarded in equity as being of the essence of a contract, and is so regarded only when it is expressly made so by the terms of the contract, or the parties have so treated it, or is necessarily so from the nature of the contract. 2 Story’s Eq., sec. 776. No circumstance appears, in the present case, to take it out of the general rule. It seems to us that there was a clear equity, on the expiration of the seven years’ credit, in favor of Solomon Carr, or his vendees. By the lapse of time, and the improvements he had made, the value of the land had been increased many fold. A rescission of the contract would not leave the parties in statu quo, and equity forbids it.

The second question is : Are the plaintiffs entitled to a sale of the land, the payment of the purchase money, interest and taxes paid by Hidy, out of the proceeds of sale, and the ap-propagation of the balance to the payment-of their judgments, without having either tendered or brought into court the amount due Hidy? We are of opinion that they are. It is a familiar general rule of equity, that a vendee seeking a specific perfoi’mance of a contract for a conveyance of real estate, by a vendor, must tendea1, or bring into court, the purchase money. But this general rule is not invariable, or without exceptions. And among the well-established exceptions to the rule is this — that where the vendor claims to have rescinded, repudiates, and denies the obligation- of the contract, placing himself in such a position that it appears that if the tender were made, its acceptance would be refused, then no tender need be made by the vendee. To this effect, the authorities are very full. Hunter v. Daniel, 4 Hare, Eng. Ch. R. 420; Webster v. French, 11 Ill. R. 254; Johnson v. Sukeley, 2 McLean’s R. 562; Irvin v. Gregory, 13 Gray’s R. 215; Crary v. Smith, 2 Comstock, 60. In such case, it is enough if the plaintiff offer, by his bill, to bring in the money when the amount is liquidated, and he has his decree for performance. Here the vendor not only claims that the contract is at an end, but, from the time of the expiration of the term of credit, he has been in possession of the premises, in full receipt and enjoyment of the rents, issues and profits, and, under the decree which we shall rendea-, he can not be deprived of them until he shall be fully paid all that is due to him.

A decree may be entered, ordering that the cause be remanded to the court of common please, to take an account of the amount due to the defendant, Hidy, for purchase money, annual interest, and taxes paid by him, with interest thereon, deducting therefrom the net rents, issues and profits of the premises during the time he has had possession of the same; that the premises be appraised, advertised and sold, as upon execution at law; that out of the proceeds of such sale, Hidy be paid the amount due to him, and that the balance, after the payment of the costs herein, be appropriated to the payment of the judgments of the attaching creditoa-s: provided that, unless the same shall, within six months from the entering of an order finally settling the amount due to said Hidy, be sold for a sum sufficient to pay the same, together with the costs herein, or unless the plaintiffs shall bring such sum into court, for the use of said Hidy, and the payment of such costs, then the petition herein be dismissed at the costs of plaintiffs.

• Sutlief, C.J., and Pece, G-holson and Scott, JJ., concurred.