9 Neb. 418 | Neb. | 1879
The plaintiff purchased the real estate in question— two city lots in Lincoln, with a dwelling-house thereon, on the 13th day of July, 1872; the said purchase was evidenced by a writing of which the following is a copy:
“Agreement made and entered into the thirtieth day of July, 1872, between Luke Lavender, of Lincoln, county of Lancaster, and state of Nebraska, and M. F. Kellogg, city of Lincoln, county, state aforesaid. "Witnesseth that the said Luke Lavender, in consideration of the sum of five hundred dollars now paid, and the sum of one thousand dollars to be paid the first day of May, a.d. 1873, and the further sum of one thousand dollars to be paid on or before the first day May, 1874, when a deed is executed, doth grant, bargain, and sell unto the said M. E. Kellogg, his heirs and assigns, all that piece or parcel of land situate in the county of
“ Signed, sealed, and delivered
• In the presence of, “ Luke Lavender.
“Witness: “ M. E. Kellogg.
“ O. 0. Parmenter.”
The plaintiff paid the $500 down, and executed and delivered notes for the two deferred payments as set out in the agreement. The agreement was not acknowledged or recorded. Kellogg went into possession of the property, and with his family moved into-the house on the premises and continued to reside there for about a year. The first deferred payment was about to become due, and the plaintiff (Kellogg) being unable to raise, more than seven hundred of the thousand dollars, applied to J. W. Hartley, a banker, gave him the seven hundred dollai's which he had( and' obtained from him an agreement to advance the remaining three hundred dollars and take up the said note when it should become due, and to secure him, and finally to repay the three hundred dollars, he placed the said property in the hands of Hartley to be rented and-sold; he the said Kellogg removing with his family from said property to Salem, Richardson' county. In accordance with said agreement between Kellogg and Hartley, the said first note was paid at or about maturity; and about that time, in the spring or summer of 1873, the said Hartley placed the said property in the hands of McMurtry & Gregory, land agents,
Hpon making the said contract and sale, the defendant, Luke Lavender, took the two notes hereinbefore described to Deacon Tingley, who, as the agent of one Parshall, a non-resident, was engaged in loaning and investing money, collecting the same, etc., and sold-them to him, endorsing one of them — the first one' to fall due — without recourse, and the other generally. Philpott & Cantlon were Lavender’s general attorneys, and one of them drew up the said contract of sale between Lavender and Kellogg. About the time of the last mentioned note becoming due, it was put into the hands of Philpott & Cantlon for collection on account of said Parshall, who owned it through Tingley his agent. .They at the same time procured a deed to be executed by Lavender to Kellogg of the said lots, and one of them went to the home of the said Kellogg,and tendered him the deed, and demanded payment of the note. The note was not paid, whereupon it was returned to Tingley as uncollectible, and shortly after-wards the property was conveyed by Lavender to Philpott & Cantlon, who shortly afterwards sold and conveyed it to the defendant, E. Mary Gregory, wife of John S. Gregory, the trade being in fact made by the said John S. Gregory.
Thus it is seen that, by reason of the failure of Kellogg to pay the notes, and the action of Lavender in conveying the land upon such failure, unless the plaintiff is entitled to relief in this action he has lost the $1200 which he has paid, and is liable for $1300 more,
In this case time was not an essential nor even a material element in the contract. Lavender, by trading off the notes, had not only made it a matter almost, if not quite, of indifference to himself whether they were ever paid or not, but had placed it out of his power to return the notes to Kellogg for the purpose of rescinding the contract. In order to have made time an essential element in the contract, the
Such were the conditions of the parties when -the demand was made for payment, and deed tendered by Cantlon. This demand was peremptory and no time given for compliance with its terms. The testimony is conflicting as to what response Kellogg made to this demand of payment, and the reasonableness of Kellogg’s statement inclines me to take it for true rather than the other, which lacks that element. It is unreasonable that, having paid twelve hundred dollars on this property and having placed it in the hands of a responsible banker to be rented and sold, he would have said less than he claims to have said in response to Cantlon’s demand. And the demand was one which Lavender nor his agent was in a condition to make, nor was it reasonable; and even if Kellogg did in his despair of being able to save his property use the language attributed to him by Cantlon, under the circumstances it should not be considered sufficient evidence of his abandonment of his right to the property.
Upon the non-payment of the last note by Kellogg it would have been competent for Lavender, who was legally held upon it as endorser, to have taken it up, and had it not been for the judgments which had been recovered against him, and constituted liens on the property, to have brought a suit for specific performance. In that event he would have been entitled to a judgment for the sale of the property and the application of the proceeds of such sale to the payment of the ■said note, the residue, if any, to go to Kellogg or such .other parties as might seem to be equitably entitled
The only remaining question is: Had the defendant, E. Mary Gregory, notice of the equitable title of Kellogg in the premises at the time of her purchase.
It appears from the testimony that Philpott & Caution had full notice of all the facts in the case, so that they took the title charged with all the equities. They retained the title for somewhat less than two months, when they conveyed it to the defendant, E.- Mary Gregory.
It also appears from the testimony that E. Mary Gregory is the wife of John S. Gregory. That John S. Gregory and J. H. McMurtry were in 1874, and previously, co-partners in the business of real estate agents in the city of Lincoln. That some time in the winter or early spring of 1874, the real estate in question was placed in the hands of said McMurtry & Gregory to sell on account of - the plaintiff. They made several attempts to sell the property, but without success. Hartley, Tingley, and Lamb, all of whom were interested in the sale of the property on account of the plaintiff, had repeated interviews with McMurtry & Gregory in regard to the same. So far as the testimony shows, while the property was in the hands of these land agents and the plaintiff, and those interested with him expecting them to sell the property, the conveyances from Lavender to Philpott & Cantlon, and from them to Mrs. Gregory, were made, and it appears from the testimony of John S. Gregory that he “ made the trade with Philpott,” which is evidenced by the deed from Philpott & Cantlon to E. Mary Gregory. That he went into possession soon afterwards, and now makes his
I conclude, therefore, that the plaintiff is entitled to a specific performance of the contract, and to have the said property treated as a fund out of which the sums severally due to Hartley'and Parshall be paid, and so far as may be he be re-imbursed the $1200, paid by him on the contract.
• It appears from the testimony that the possession of the real estate in .question, as well ‘as the plaintiff’s equitable ’title thereto, were by the plaintiff placed into the hands of J. W. Hartley as collateral security for $300, advanced by him to assist in taking up the first of the $1,000 notes, and that he received some money as rent for the premises, to be applied thereon. Also that Robert P. Parshall is the owner of the last said $1,000 notes.
It also appears from the record that Palmer Way, John Johnson, Dwight G. Hull, II. Atkins, A. K. White, Mary Lavender, Monéll & Lashley, A. S. Godfrey & Go., Samuel Roach, Alfred Parmenter, T. B. Sloss & Smith, H. C. Hastings, The First Baptist Church, Farmer Brothers, and Seth Robinson, each have judgments of record in the said county of Lancaster against the said Luke Lavender, which constitute liens in form against and upon the said real estate.
The judgment of the district court is therefore reversed and the cause remanded for further proceedings, in accordance with the above views.
Eeversed and remanded.