76 Neb. 172 | Neb. | 1906
This was an action for specific performance of certain land contracts entered into by the Union Pacific Railway Company with one Michael O’Neill, and assigned by him to plaintiff, David Bradley & Company, to secure an indebtedness from O’Neill to the plaintiff. There was a trial of the issues to the court, and a judgment for the
The facts underlying the controversy are that on the 31st day of May, 1884, the Union Pacific Railway Company sold to Michael O’Neill two sections of railroad land in Deuel county, Nebraska, the sale being evidenced by eight separate contracts, each for a particular quarter section of the land. These contracts provided for the payment of the purchase price in ten equal annual payments, with interest on the deferred payments. The contracts contained, among others, the following condition: “And it is hereby agreed and covenanted by the parties hereto that time and punctuality are material and essential ingredients of this contract, and in case the second party shall fail to make the payments aforesaid, and each of them, punctually, and on the strict terms and times above limited, and likewise to perform and complete all and each of his agreements and stipulations aforesaid strictly and literally, without any failure or default, then this contract, so far as it shall bind said first party, shall become utterly null and void, and all rights and interests hereby created or then existing in favor of or derived from the second party, shall utterly cease and determine.” O’Neill made the first payment on these contracts in cash and three subsequent payments for the years 1886, 1887, and 1888 and no other payments have ever been made on the contracts. On the 25th of February, 1886, O’Neill,
In 1899 the Union Pacific Railway Company was succeeded in the ownership and control of the railway system and the lands in dispute by the Union Pacific Railroad Company, which company canceled the contracts, and sold the land to William Law on the 18th day of October, 1899. Later William Law assigned his contracts of purchase to James G. Piercey, the present owner, whom plaintiff attempted to make a party defendant in the present suit. On February 23, 1901, plaintiff by its attorneys, sent the following communication to the railroad company: “Feb. 23, 1901. B. McAllister, Esq., Land Commissioner, U. P. Ry., Omaha, Neb. Dear Sir: Our clients, David Bradley & Co., in 1892, procured an assignment of the contracts of one M. O’Neill to sections one and thirteen in Twp. 12, R. 44, Deuel county, Nebraska, which assignment was placed of record in Deuel county and recorded in book 1, page 211. The contracts number from 78,703 to 78,776, and from 75,307 to 75,310, inclusive, and were made to secure to David Bradley & Co. the sum of $957.75, due on said date. They wish to redeem and pay the balance due on the O’Neill contracts to your company and receive from it a deed for the property. Please advise us as to what amount will be necssary to redeem one or both of said sections under the O’Neill contracts, and oblige, yours very truly, Flickinger Bros.” The railroad company replied to this letter, as follows: “Omaha, Neb., Feb. 25, 1901. Messrs. Flickinger Bros., Council Bluffs, Iowa. Gentlemen: In reply to your favor of the 23d inst., would say, that Sec. 13-12-44 has been sold and contract is in good standing, and Sec. 1 is for sale at $1.75 per acre, as per terms on inclosed slip. Yours truly, B. A. McAllister, Land Com’r.” After this correspondence the present suit was instituted.
Now, under the undisputed facts in the case at bar, plaintiff took an assignment of O’Neill’s interest in the contracts in issue, subject to Wilson’s lien of $2,900 in 1892, for collateral security of a bona fide indebtedness existing between O’Neill and plaintiff. Under this assignment plaintiff had a right to discharge the Wilson lien and to protect its security by making the deferred payments on the contracts. Diligence in business would have suggested that, when the assignment was taken by the plaintiff, it should have inquired as to the condition of the payments, for a default of which a forfeiture Avas provided by the plain terms of the contracts; but it apparently made no such inquiry at the time it received the assignment. This tardiness of inquiry is sought to be explained by saying that the plaintiff naturally thought that O’Neill or Wilson would make the payments as they came due. If we should accept this wholly unsatisfactory excuse for the want of any inquiry at that time, we are next confronted with the fact that in 1896, eight years after the contracts were subject to forfeiture for nonpayment of six out of ten instalments due thereon, plaintiff did make inquiry as to the exact status of the contracts, and received the information asked for from the land department of the railroad company, with an offer, even at that late date, to make plaintiff a deed to the land if it would pay the amount then due. And, again, for two years after this communication the agents of the company frequently requested plaintiff to comply with the belated terms of payment, and plaintiff continued to, neglect the offer, claiming as an excuse for its gross laches that it doubted the authority of the receivers in charge of the property to make a valid conveyance of the lands. Now, if we were content to treat this latter excuse as a reasonable and conscientious explanation of plaintiff’s delay, we are still con
From all these facts we are'compelled to find that'plaintiff has been guilty of gross laches in'protecting its security against the overdue payments on the contracts, during a period of nine years, and we are unable to resist the suggestion that, but for the recent rise in value of lands in western Nebraska, this suit would never have been instituted. Here is a fair portrayal of plaintiff’s diligence, as reflected from the record. While the gates of opportunity stood long ajar for the full protection of its security, it •doubted the quality of mercy offered, and slumbered and slept. When all reasonable doubt as to the authority to make the conveyance was removed by the purchase of the property by the defendant, it turned over, and continued to snore, and nothing but the powerful restorative of a sudden rise in the price of western lands sufficed to arouse it from its Rip Van Winkle sleep.
Finding no equity or conscience in the bill, we recommend that the judgment of the' district court be reversed and the plaintiff’s petition dismissed.
By the Court: For the reasons given in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the plaintiff’s petition be dismissed.
Reversed.