Hudson v. Watson

26 Miss. 357 | Miss. | 1853

Mr. Justice Handy

delivered the opinion of the court.

The first ground of error complained of in the court below and urged here, is, thpt the deposition of the witness Simmons was improperly admitted in evidence, because the notice of taking it was insufficient. It was the deposition of a witness about to depart from the State, and was taken de bene esse. The notice appears to have been served on the adverse party about 8 o’clock on the morning of the 19th August, he residing about two and a half miles from the place appointed for taking it. He was informed that he could have until 3 or 4 o’clock, p. m., of the 20th, the day appointed to take the deposition. In such cases, the law requires only reasonable notice to be given; and of this the circuit court was most competent to judge, from its knowledge of the situation of the parties. For all that appears in the record, the notice was reasonable; and we are not disposed to say that the circuit judge erred in so holding.

Secondly; it is insisted that the plaintiff was entitled to recover upon the evidence.

In this case, no particular time was specified for the execution of the conveyance after the payment of the money; and it has been held by this court to be necessary in such cases, that the vendee should make demand of the deed from the vendor, who is entitled to a reasonable time thereafter to have the deed executed ; after which the vendee should wake a second demand, and in default thereof, the right of action to the vendee becomes complete. Johnston v. Beard, 7 S. & M. 217; Standifer v. Davis, 13 Ib. 48. The correctness of this rule seems to have been recognized by both parties in this case, and the controversy seems to be whether what passed between the parties on the 7th April amounts to a demand of a deed on the part of Hudson; for, if it had that effect, the subsequent demand on the 19th April would place the vendor in default.

It appears from the evidence, that the plaintiff was not solicitous about the deed, and the proposition for making it came from the defendant. When the defendant offered, on the 7th April, to go and prepare the deed at that time, the plaintiff replied that he then had not time, and that it could be done at some other time. The defendant then said that he would have the deed written, and would attend on the next justices’ court day, on the 19th April, and have it duly acknowledged; to which the plaintiff assented, and said he would attend-on that occasion.

In all this, the plaintiff seemed to be indifferent about the deed; and, instead of demanding it, he seems to have declined the defendant’s willingness to complete it. The object of the demand, so as to charge the vendor for default, is to put him to diligence in having the deed completed.' When the demand is made, the vendor is bound to act with promptitude, because of the presumption that the vendee’s interest requires it. But where there is no demand, and still more, where performance is proffered and declined, the vendor is justified in acting on the belief that rigid performance is not required of him. The conduct of the vendee on this occasion is altogether inconsistent with the idea-that he made a demand, or intended to put the vendor to diligence in complying with his gratuitous offer.

But if it could be regarded as a demand, Watson was yet entitled to reasonable time to have the deed perfected. What is a reasonable time, must be determined from all the circumstances connected with the transaction. Chitty, Con. 730; 3 Sumner, 530; 3 Mees. & Welb. 445.

The evidence shows that the vendor was unable, by reason of sickness, to attend at the justices’ court and complete the deed, as he had voluntarily offered to do; that it was necessary foi\.hh/h to ride several miles in order to attend to the business, and although unable to comply with his promise to attend to it at tile justices’ court on the 19th April, yet that he was diligent to plerform his contract at as early a day as his health would penfnit, and did complete the deed on the 26th _April, at the hazlard of his health. It is manifest, from this state of facts, tlfc® the failure to execute the deed may be justly attributed t® the sickness of Watson. At all events, the question as to whether he executed the deed within a reasonable time, under all the circumstances of the case — the indifference of Hudson, the ill health of Watson, and the absence of proof of any particular damage to Iiudson — was fully and properly submitted to the jury by the instructions, and their verdict was for the defendant• and we think, that, in any view in which the matter can be justly considered, the verdict should not be disturbed.

Another objection raised in this court, in behalf of the plaintiff in error, is, that the deed tendered does not show a discharge of the defendant’s obligation, because the acknowledgment of the relinquishment of his wife’s dower is not according to law. Without determining the propriety of this objection, had it been made at a proper time and in a proper case, it cannot avail the plaintiff in this case, because, 1st, the bond contains no obligation to convey the land with relinquishment of dower. It only binds the defendant to make to the plaintiff, “ his heirs or assigns, a general warranty deed; ” and that was sufficiently performed by the deed executed. 2d. The objection was not made in the court below, and cannot be entertained in this court.

The judgment is, therefore, affirmed.