Johnson v. Jackson, 27 Miss. 498

Johnson v. Jackson

27 Miss. 498 | Miss. | 1854

Mr. Justice Handy

delivered the opinion of the court.

This was a bill filed in the district chancery court at Hernando.

The material facts of the case are, that one Irwin purchased the land in controversy in January, 1850, from Healy and Whiting, for which he paid $150 in cash at the time, and gave three promissory notes each for the sum of $190, payable in one, two, and three years, and received from the vendors a bond for title to be conveyed “ on the punctual payment of said notes,” and went into possession. In February, 1851, he executed a deed in trust conveying the land to Jackson as trustee for the use of Pryor, but subsequently he delivered up to the agent of Healy and Whiting the title bond, in derogation of the rights of Jackson, as trustee of Pryor. Afterwards Healy and Whiting undertook to sell the land to Johnson for $644, of which $100 was paid in money, and the balance secured by notes on time, and gave him a bond for title to be conveyed on the payment of the notes executed by him. It appears that Johnson had notice of the previous purchase, and that he purchased the land under the advice that, as Irwin had failed to pay his notes as they fell due, Healy and Whiting had the right to put an end to the contract. Johnson, therefore, made the purchase; and after the execution *501of the trust deed by Irwin to Jackson, and with notice of it, he obtained a transfer of the title bond of Healy and Whiting to Irwin, from a third person, to whom Irwin had assigned it subsequently to the execution of the trust deed by him.

The bill is filed by Jackson as trustee for Pryor against Healy and Whiting and Johnson, and prays that they be decreed to convey the legal title to the land to the complainant, upon his complying with the terms of the contract of Irwin, which he offers to do.

A decree was rendered accordingly, from which this appeal is prosecuted by Johnson.

The ground on which the decree is alleged to be erroneous is, that Irwin, having failed to pay the notes for the whole of the purchase-money at their maturity, his vendors had a right to disaffirm the contract, and resume their proprietorship of the land, and make a resale of it.

We think that this position cannot be maintained under the circumstances of this case, for two reasons: —

First. The obligation of Irwin to pay the purchase-money must be regarded as dependent upon the duty of the vendors to convey the land, so far as to disable the vendors from putting an end to the contract, without a performance, or a valid offer to perform, on their part. In other words, the contract was a mutual and dependent one, and neither party can insist upon a performance by the other, without performance, or readiness to perform, on his part. This point has been repeatedly held by this court upon contracts similar to this, and in some cases where the essential terms are identical with those here used. Wadlington v. Hill, 10 S. & M. 560; Peques v. Mosly, 7 Ib. 340; Mobley v. Keyes, 13 Ib. 678. And it is in accordance with the just and well-established rule, which has also been sanctioned by this court, that covenants of this nature must be held to be mutual and dependent, unless a contrary intention clearly appears. Liddell v. Sims, 9 S. & M. 596.

Second. The vendors could not abandon the contract and treat it as at an end without refunding to the vendee the money he had paid in part performance of it. For it is a general rule, that in order to disaffirm a contract, and entitle the party to the *502rights resulting therefrom, both parties must be placed in statu quo. It would certainly be unjust to permit the vendors, after having received part of the purchase-mbney from the vendee at the time of the contract, to put an end to the contract upon failure to pay the residue of the purchase-money, and to make a resale to a third person, without refunding the money paid, and without even tendering performance on his part.

We think, therefore, that the decree is correct, and it is affirmed in its principal feature. But there should have been an account taken of the amount of the principal and interest due upon the notes of Irwin for the purchase-money, and a day fixed for the payment thereof by the complainant into court, for the use and'benefit of the parties entitled thereto; upon compliance with which by the complainant, the vendors, Healy and Whiting, should have been decreed to convey to the complainant, for the uses and purposes declared in the trust deed to him, the lands and premises in controversy, and that the defendant Johnson should also, upon such payment into court, deliver possession of the premises to the complainant for the uses and purposes aforesaid; and upon failure by the vendors to make such conveyance, that the same should be made by a commissioner to be appointed for that purpose. '

The decree is reversed, and the cause remanded to the court below', with directions that it be proceeded with in conformity with this opinion; the appellant to pay the costs.