Crittenden v. Drury, 4 Wis. 205

Crittenden v. Drury

4 Wis. 205 | Wis. | 1856

By the Court,

Cole, J.

We are unable to discover any good reason for reversing the decree made in this'eause in the court below. The bill is filed to compel the specific performance of a contract for the sale of real estate. The contract is in writing under seal, and signed by Drury and Hiram Linsley. It bears date July 1st, 1851. Drury agrees to Convey to Linsley, his heirs or assigns, by warranty deed, the southwest quarter of the southwest 'quarter of section twenty-one, in town fifteen, range fifteen, in Fond du Lac county, upon being paid $62.50 and interest, in six months from the date of the contract, or $75 and interest, within the year. There is a provision in the contract that in case Linsley made default in the payment of the money when it became due, that then Drury should have the right to declare the contract void, take possession of the premises, and recover rent for their uáe and occupation. Linsley assigned this contract to James M. Gillett on the 14th day of July, 1852, and Gillett assigned it to the complainant August 10, 1858.

Undoubtedly the ground upon which Drury resists the performance of this contract is, that Linsley did not strictly comply with its provisions, and pay him the $62.50 and interest on the 1st of January, 1852 ; or the $75 and interest on the- 1st of July thereafter.

However, it is not necessary for the disposition of this case, to decide that when there is an express stipulation in a contract of this kind, that the vendor may declare the same void upon the failure of the vendee to pay the money on the day it becomes due, that time is not material, and that a party does not forfeit all claim to the assistance of a court of equity to enforce the contract failing thus to comply with its conditions in regard to the payments; since Linsley swears that he called at Drury’s office *211on the 1st of July, 1852 — tbe very day tbe money became due-prepared to pay bim tbe principal and interest; and was told by Drury’s partner tbat tbe appellant bád gone to Chicago. If this was so, and there is no testimony impeaching this statement of tbe witness, then Linsley was prepared to fulfill bis contract to the very letter. If Drury was not at home to receive bis money, bis absence could work no prejudice to Linsley or bis assignee. Linsley also swears tbat be was prepared to pay tbe money from this time up to tbe 14th of July, tbe day of tbe assignment of tbe contract to Gillett. To rebut this evidence tbe appellant called upon Hawkins, who testified tbat he was present on tbe 8th of July at a conversation between .Drury and Linsley about tbe payment of tbe money ; tbat Drury asked Linsley if he bad tbe money to pay for the land described in tbe contract; Linsley said be bad not got tbe money; Drury said tbat if be bad tbe money be would take it. And upon Linsley again saying tbat be bad not tbe money, Drury said he 'Should consider tbe contract void. From this, it wonld be natural to suppose tbat Drury’s object in making demand for tbe money, was to notify Linsley. that he insisted upon a punctual performance of the contract, and should rescind or declare it void, unless tbe money was paid according to its terms; and thus we might have bad to consider the question of bis .right to do so at this time. But we are relieved from tbe-consideration of this question by tbe subsequent conduct of Drury. Gillett says in bis testimony, tbat he called upon bim after tbe contract bad been assigned and offered to pay the money due, principal and interest, and asked Drury if be would give a deed. _ Drury said be would; would make one out, and get his wife to sign it. Gillett left Drury, be says, under tbe impression tbat be would give tbe deed. Drury did not then tell Gillett that tbe contract bad been declared void, because Linsley had not paid the money on tbe 8th, and that he did not consider himself longer bound by its provisions. He agrees still to comply with it, — recognizes its validity, and waives all advantage, if any be bad gained, in consequence of not being paid on that day. Gillett further testifies tbat be again offered bim tbe amount due on tbe contract on tbe 2d of August, 1852, and also some - time between tbe 1st and 11th oFSeptember following, tendered in gold .the amount *212due. At each of the last-mentioned times, Drury declined giving a deed, or receiving the money. What his reasons were for this refusal are not disclosed, and it is useless to speculate about them. Whatever they were, we think they were insufficient to exonerate him from the obligations of his contract. Gfillett further swears, that during all the time he held the contract he was ready to pay the money due upon it, and receive the deed, and so repeatedly informed the appellant. It is admitted upon the record, that shortly before the bill was filed the complainant called upon Drury and offered to pay the amount due upon the contract, and demanded a deed, and that Drury refused to receive the money or give the deed. The bill was filed September 1, 1858. Shortly after, the contract was assigned to the complainant. The principles involved in this case are too familiar to require further discussion. If the appellant can successfully, under all the circumstances of the case, resist the decree made below, it would be difficult to imagine an instance where the execution of a contract for the sale of real estate, could be enforced.

Our attention, has been called to another view of the case, as being equally decisive of the merits against the appellant; but we shall not enter into much of an examination of it. And it is this, that really the appellant stood in the character of a mortgagee in this transaction. Linsley testifies as follows:

“ Defendant said he had a land warrant which he could not get as much for as he wanted; if I would find a forty, he, de-defendant, would enter it for me at government price. I found a forty, the one described in the contract, and told him to enter it. He said he would wait six months or a year on me if I would pay him interest. • After I had found the land, and he had entered it, he would not let me have it at government price, he wanted more. I then made the contract hereto annexed. I paid the fees for entering the land, $2.00.”

From this, it is contended that Drury entered the land for Linsley, and took the title in himself as security for his money. Such transactions are quite common in this state; and it is insisted that the person making the advances and entering the land in his own name, does so to secure the payment of his money, instead of taking an ordinary mortgage upon the land, *213and that tbe way of doing tbe business cannot change tbe real gelation of tbe parties, wbicb is that of debtor and creditor, mortgagor and mortgagee.

There is great plausibility in this reasoning, but as it involves a question of much practical importance, and was not much discussed, we reserve ourselves upon it.

Tbe decree affirmed with costs.