19 Iowa 172 | Iowa | 1865
On the 13th day of November, 1863, the defendant in this action, R. R. Paine, then recently having purchased of Thomas Lowe his farm, entered into an agreement with Nicholas Baker, whereby he leased the said farm to said Baker for one year from the first day of March, 1864, at the agreed rent of one-third in kind; and further agreed “ that if said Baker shall conclude to purchase of said Paine one undivided half of said farm, on or before the first day of March, 1865, he is to have a deed therefor from said Paine upon the payment to him, Paine, by said Baker, of one-half of the amount paid by said Paine to said Lowe, together with interest thereon at the rate of ten per cent per annum.” Paine is a non-resident of this State, and his contract of lease contained his residence and post-office address, as well as that of Baker, the lessee.
After the expiration of the term of lease, the tenant Baker refusing to give possession of the farm, Paine brought his action for forcible entry and detainer, which was set for trial on the 21st day of March, before a justice of the township where the land is situated.
On the day thus fixed for trial, the plaintiff in this action, George Crawford, filed his petition against Paine, the defendant, alleging the making of the lease aforesaid ; that it had, on the 27th day of February, 1865, been assigned by Baker to him; that he had concluded to purchase the undivided half of the farm, and had tendered, on the first of March, to the agent of defendant, the one-half the amount paid by defendant to Lowe, for the farm, and the interest thereon, which was not received nor the deed executed. That as soon as the defendant came into the State after that date, he endeavored to find him and tender the same to him in person, but he had failed to do so, and, therefore, he brought the money into court and had the same ready for defendant at any time.
The motion to dissolve was heard upon the petition and exhibits, bonds and affidavits. The bond was in the penalty of five hundred dollars, and its sufficiency in amount was questioned, and many of the affidavits bear upon this point. The other affidavits controvert the agency of the person to whom the tender was made, and show that plaintiff was advised of the want of authority at the time of tender; they also deny some of the other material allegations of the petition.
Under our statute, as well as by the rules of equity practice, it is competent for the court, in case the litigation shall be protracted,' to require an additional bond or further security to meet such contingency.
assignor, Baker, having failed to pay the rent, and thereby not having complied with the contract himself, cannot demand a decree for specific performance by the other party. The defendant is at fault here also. For it does not sufficiently appear that the plaintiffs assignor is in default; upon this question the affidavits are in direct conflict, and in such case we are not warranted in assuming the correctness of the claim of the defendant; especially where, as in this case, such position is set up by defendant, and is one of avoidance, and hence to be established by the weight of evidence. If this fact was clearly proved, it would doubtless be good ground for sustaining the motion.
This is manifest from one of the fundamental rules of courts of equity, to wit, that suitors in that tribunal must come with clean hands; that is, they must present themselves without any taint of wrong adhering to them in relation to the matter about which they ask the interposition of the chancellor. In the theory of the law, one who is liable to the action for forcible entry and detainer, has that taint of wrong upon him, and therefore is-not, as a matter of right, entitled to the interference of a court of equity. If he is not liable to the action, and has done no
The plaintiff does not show wherein or how he can suffer irreparable injury, nor does it occur to us in what manner such injury can result. There is no allegation or suggestion in the petition or affidavits, that the defendant is insolvent, or in any way unable to account for the one-half the rent which may accrue to plaintiff during the litigation in case he shall be successful. The defendant is, however, a non-resident, and this fact will in certain cases or circumstances become an occasion for the exercise of equity jurisdiction, as when a non-resident plaintiff is about to enforce the payment of money to take beyond the State, from a defendant who has a claim in litigation or 'btherwise against such plaintiff, and for which he can obtain no satisfaction except by restraining the payment and consequent deportation of the money by such nonresident.
But in this case, if the plaintiff is a non-resident, the subject of the litigation is within the jurisdiction of the court, ■which also has jurisdiction of his person, and by this action a lis pendens is created, which will effectually prevent an alienation, so as to defeat the plaintiff in his title or claim, in case-he shall succeed; and beside this, the plaintiff has still in his own hands the consideration money, which will belong to defendant in case the plaintiff enforces the specific performance, and out of such money he would be entitled to retain any money which may be justly due him for rent or other thing. .
B.ut there is one other point which has some weight in our minds in determining this case. It is this, according to the showing by the petition, amended petition, and affidavits, there was no legal.or sufficient tender made to the defendant. Our statute has provided (Revision, § 1816) that an offer in writing to pay the money, if
This failure to make a good tender, while it may justly be considered as sufficient to induce a court of equity to withhold the exercise of its extraordinary powers of injunction, yet the right to a specific performance, is one so much governed by the sound discretion of the court, as that a mere failure to make a good legal tender, would not necessarily defeat a claim for such specific performance.
Without therefore determining any question involved in the final adjudication of this cause, or expressing any opinion upon the merits of it, we are united in the opinion that the order dissolving the.injunction shall stand.
Affirmed.