89 Neb. 367 | Neb. | 1911
In January, 1908, the defendant Button Land Company, by a written contract with the plaintiff, agreed to sell him a tract of land in Colorado and received $300 upon the purchase price. At that time the defendant did not own the land, but this fact was known to the plaintiff. Shortly thereafter the defendant orally agreed to furnish the plaintiff an abstract of title. Both parties treat this agreement as supported by the consideration which sustains the written contract, and we shall so consider it. The deal was to be closed on or before March 5, 1908, but the defendant could not perform on that day. On the 12th of March the plaintiff wrote and sent to the defendant a letter to the effect that, since it was some time past the date when thq abstract was to be furnished and no word had been received with regard thereto, if the check for $300 were returned the plaintiff would call the deal off. Subsequently the defendant furnished the plaintiff an abstract of title, and offered him a deed for the land, but signed by a third person. The plaintiff objected that the title was not good, and that the time had long since expired within which the contract should have been performed. Subsequently the plaintiff brought this action to recover the $300. The defendant tendered the abstract and the deed in court, and asked that the plaintiff be required to specifically perform his contract. The case was tried as an action in equity, and both litigants were dismissed from court. The plaintiff appeals, and the defendant has filed a cross-appeal.
It is conceded that two trust deeds conveying this property to a trustee to secure the payment of an indebtedness were executed in 1889, and that they have not been released. The defendant, however, argues that, since a tax deed was subsequently issued for this land, and the affidavits attached to the abstract prove that the parties under whom he claims title have held possession by virtue of that deed for more than seven years preceding the
The plaintiff was justified in refusing to accept the deed, and the defendant is not in position to demand a performance of the contract. The plaintiff was therefore entitled to recover the purchase money. Maxwell v. Gregory, 53 Neb. 5. The provision in the contract for a forfeiture of the payments if the contract is not completed cannot be invoked by a vendor who is unable to perform for want of sufficient title. Platte Land Co. v. Hubbard, 12
The judgment of the district court therefore is reversed and the cause is remanded for further proceedings.
Reversed.