24 Ind. 299 | Ind. | 1865
Bales, as assignee of one Thompson, prosecutes the case in judgment against Matthew It. Hunter, Moses Hunter, and one Moore, for the specific performance of a contract for the sale of real estate. Trial by the court; finding for the plaintiff; motion for a new trial overruled, and decree for specific performance. The defendants appeal to this court. There are two conflicting theories in this case, and there was evidence on the trial in support of each. In such case, it is the duty of the appellate court to adopt that theory which will sustain the finding below. That court saw the witnesses, heard them testify, observed their conduct, and had a better opportunity of forming a just conclusion on the weight of the evidence than we can have from the reading of the transcript of the record. Whatever we may think of the testimony, under the rule on the subject, the court below had a right to find that Moore resided in Ohio; that in 1856, he was the owner of the land; that in the.spring of that year, Thompson, who resided in Indiana, visited the former with a view of purchasing it; that Moore declined selling, but promised that he would be out to Indiana in the fall, and that if he concluded to sell, he would give Thompson the refusal; that Moore did come to Indiana that fall, and appointed one Phippens his agent to sell the land; that Moore and Thompson met; that the latter proposed to purchase the land, but the former said he was going to Iowa, and had not time to attend to the matter, and referred him to his agent, who he said was authorized to sell to him, and that after informing him
It is urged that Thompson did not' .make. a' verbal contract with the agent; that it was only'a..negotiation; that the agreement was to be reduced to writing, andkintil that wras done, the bargain was not consummated: Xp-is’-* just as true of the verbal understanding between Ftunter and Moore, for that was to be reduced to writing by the execution of the deed, and the giving of the note for the deferred payment.
We think that the court below, in finding that Thompson had the prior equity, did not commit an error of which the appellants have a right to complain.
There is a question much discussed by counsel, which, we think, is not necessary to the decision of the case; but,
It is contended that a parol contract for the sale of land, or for a lease for a longer term than three years, is not void, but valid for many purposes, and a conveyance in compliance with such a contract will relate back to its date, and overreach an intermediate valid sale; that a vendor may, by pleading the statute of frauds, avoid a parol contract for the sale of land, or he may waive it and consummate his contract, and cannot be deprived of his right to do so by a stranger. The cases of Gudgell v. Duvall, 4 J. J. Marsh. 290, Clary’s Heirs v. Marshall’s Heirs, 5 B. Monroe 266, Lucas v. Mitchell, 3 A. K. Marsh. 244, Minns v. Morse, 15 Ohio 568, and Dawson v. Ellis, 1 Jacob & Walker’s Ch. Rep. 503, are cited in support of this proposition.
But we think the true rule is, that the vendor makes his election to treat the prior verbal contract as void, whenever he makes a valid agreement of sale in the face of it, and that the intermediate purchaser, in such a case, is shielded by the statute, as well as the vendor. In equity, a contract for the sale of land is not merely executory, but the vendee becomes the owner, and the vendor is seized in trust for him, and has a mere lien on the land for the purchase money, upon the maxim that “ equity looks upon that as done which is agreed to be done.” The contract, however, which in equity will make him the owner, must be a valid contract; must be such that he has a right to pray a specific performance of it. Equity looks upon that as done which is thus agreed to be done, and it relates back to the contract. But nothing is looked upon in equity as done, but what ought to be done; not what might have been done. Nor will equity consider a tiling as done except in favor of those who have a right to pray that it may be done. 2 Story’s Eq. Jur., § 792, and authorities there cited.
It is proper to remark that the case of Dawson v. Ellis,
The appellants contend that the purchase money tendered ought to have been brought into court. This is not necessary. In Irvin v, Gregory, 13 Gray 215, in delivering the opinion of the court, Shaw, C. J., says: “The vendee does not make a strict unconditional tender, but only an offer upon receiving the conveyance, without which he is not obliged to pay. When money is brought into court, with a plea of tender, it is an admission of the party bringing it that the adverse party is entitled to it, and may take it out when he pleases. But in a suit for specific performance, it is sufficient for the plaintiff to offer by his bill to bring in his money, whenever the same is liquidated, and he has a decree for performance.”
According to the English practice, the purchase money is never paid into court, except upon the order of the court. Dart, on Vendors 516; Fry on Spec. Per. 490. Purchase money* paid _ into court is the property of the vendors.
The tender was made to Matthew 11. Hunter, when the purchase money became due, and before he conveyed to Moses Hunter.
The defendants insist that the court‘should have allowed interest from the time the purchase money was tendered. Thompson tendered the interest due when the tender was
When payment is to be made upon a conveyance being made, no interest is allowed until a deed is tendered. So though the purchaser took possession, if the land is vacant and unproductive. Stevenson v. Maxwell, 2 Sandf. Ch. 273. So when the vendee tenders the purchase money, and the vendor refuses it. January et al. v. Martin, 1 Bibb. 586. So whenever the vendor is the cause of the contract not being executed.
The judgment of the court below is affirmed, with costs.