| Iowa | Dec 15, 1855
This is a petition for specific performance. The cause would fall within the principles of the statute of frauds, were there not a plentitude of evidence showing a part performance, which relieves it from this difficulty. Collins built a house and made other improvements on the land, of which Kelley was fully aware, as he lived in the same house. A small payment was also made to Kelley in his lifetime, and a very considerable one to his administrator. In truth, the contract is not denied, in substance. The only material point on which the administrator dissents from the case made in the bill, is, on the price of the lot. lie says it was to be a reasonable price, to be settled thereafter; while C. says, it was fixed at two hundred dollars by Francis K, before his death. We are satisfied that the proof sustains the bill.
The statute of frauds is not set up by the defendant, and if it were, the parol evidence, which is objected to, would be admissible to show the application of the payments, and to exjDlain the possession, in order to take the contract out of the statute. The doctrine of part performance and payment, assumes the .admissibility of parol evidence, to explain and apply them; besides, the contract is substantially admitted, There is, in truth, nothing for the court to add, except to advert to certain objections presented by defendant.
Pirst. It is said, that the contract is indefinite and uncertain, both as to the property, and tb.e terms of payment. The contract is natural in its original progress. Collins is permitted to build a house on a certain piece of land, and is to have one acre of ground, to be surveyed and laid out
Second. If the price had been left uncertain, this would not vitiate the contract, for then it would mean a reasonable consideration; it would rest upon a quantum meruit, and either party could enforce it without difficulty.
Third. It is objected that there is no mutuality. Whatever weight there might have been in this objection, at first, it vanished the moment the house was built, and Collins took possession. It could be enforced as well by the vendor, as by the vendee. It was as well an agreement to buy, as to sell.
Fourth. Again, it is said, that the complainant has slept upon his' rights — has awaited until the property is enhanced in value — and for that reason now seeks a performance, to which he is not entitled.. We recognize the doctrine, that a vendee cannot sleep upon his rights, become delinquent in his payments, and then, at his will, avail himself of the con- ■ tract, if the advance of the property favors him, or reject it, if the result threatens to be unfavorable. But how is it with the petitioner? Has he been thus delinquent? The lot was surveyed in the spring of 1858; Francis Kelley died in November, 1858; the administrator received the payment of $150 in July, 1854, and this bill was brought in September, 1854. Here was a fair sequence of facts, keeping the contract'in life, and negativing the idea of an abandonment or delinquency. The only specific time at which we can, by possibility, say he should make payment, was after the survey. But the vendor himself took no exception to the non-uavment at that time, and his administrator received
Fifth. The more weighty objection of the defendant, and which is made both by demurrer and on the hearing, is, that there was no demand of a deed, and no tender of the money due, before suit. There is something in the bill which was probably intended for an averment of demand, but it is very imperfectly stated, and is wholly unsustained by proof; but this is of no consequence at present, for there is neither averment, nor proof of a tender, before suit, of the balance of the purchase money. It is unquestionably true, that under the general and ordinary rule, the petitioner would be obliged both to aver and to prove a demand of the deed, and a payment or tender of the money. But is there nothing which takes this case out of the common rule ? George Kelley was administrator, and as such he could not make the deed, without first coming or being brought into court, and there obtaining authority to make it; or in other words, to perform the contract of the intestate. To what end, therefore, should there be a tender or demand ? On a demand of a deed, the administrator cannot make it; and the vendee is not compelled to tender his money, when the vendor has already refused to execute the instrument, or his administrator is, Toy law, rendered unable to execute it. The law does not require vain things, and no utility is perceived in an adherence to the rule, where the reason of the rule ceases. In the case of the existence of adult heirs, who would be able to fulfill the contract of their ancestor, there might be reason for returning to the rule again. In the present and like cases, it seems sufficient to bring the money into court, at the time when the vendee asks that the administrator may be authorized and directed to convey. This he does. The form in which it is averred, is not technical nor professional, it is true, for he. should not plead a tender (using his own phrase), but should proffer the money, in open court. As to the truth of this allegation, that he brings the money into court (to which it is objected, that there is no proof before this court), let it be
The statute enables either party to come into court, either to enforce the contract, or to obtain on the part of the administrator, that authority, without which he cannot act. If both are willing, they apply to the court for power only, and neither being in default, nor resisting, tbe costs are to be disposed of equitably. If the administrator either denies or resists, he is to be charged with the costs, if the decree is against him. In this case, the administrator denies a part of the contract alleged, and, we may say with safety, has resisted the petitioner’s right to a deed, even on the payment of the balance of the two hundred dollars. This he does by his pleadings, if in no other manner.
Sixth. The only matter remaining to be noticed, is the ■contract and receipt-purporting to be executed by Collins, 'and the administrator, in July, 1854, the part of which relating to the present question, is as follows: “ and the party <of the second part (Collins) pays to the party of the first part '(the administrator), one hundred and fifty dollars in hand, paid in part payment of the lots, the said Thomas Collins -agreed to buy from F. Kelley, the price to be settled upon by John Parker and Mason ’Whoten.” If this paper is introduced as evidence of a new contract for the land, the answer to it is, that the administrator had no .authority to make such & contract. But it was probably introduced to show, that ■the price was not agreed upon between the original parties. And this it has a tendency to show, whilst at the same time, it is difficult to account for that part of the paper. Giving.it its utmost effect, we could not say that theprice or value was ■to be fixed as of that date, that is, in the year 1854, or -subsequently, but should feel constrained to limit the appraisal of the value to the time when Collins took possession, or when the survey was made. Now, the administrator’s Answer, admits that petitioner was to pay such reasonable price therefor, as the parties might agree to-; -and the'testi
The decree of the District Court is affirmed.