169 Iowa 59 | Iowa | 1915
On August 31, 1910, the plaintiff by written contract sold and agreed to convey to defendant 120 acres of land for the sum of $14,000. Of this sum defendant undertook to pay $1,000 upon the execution of the writing and the remainder upon terms stated as follows:
“Six thousand four hundred ($6,400) dollars on March 1st, A. D. 1911, and execute back to first parties or such person as they may direct a purchase money mortgage for seven thousand ($7,000) dollars, to bear interest at the rate of five and one-half per cent per annum, due in five years, but optional after two years, and it is also understood and agreed that second party may have the option of paying all cash on the first day of March A. D. 1911, by giving written notice*61 thereof 30 days before, and should it become necessary to enforce the conditions of this contract by law the second party is to pay the interest on the whole amount from the date hereof at five and one-half per cent per annum, and a reasonable sum shall be taxed as attorney’s fees and added to the costs.
“It is agreed by the parties hereto that possession is to be given on March 1st, A. D. 1911, and on final payment and execution of the mortgage on said date to deliver a good and sufficient Warranty Deed and Abstract showing merchantable title to said lands, principal and interest in all cases payable at First National Bank in Coon Rapids, Iowa.”
On March 1, 1911, defendant took possession of the property, which he has ever since retained. About the same time, the plaintiffs executed a deed to the defendant, but the same was not delivered because of certain objections raised to the sufficiency of the accompanying abstract of title. The matter of completing the abstract was delayed until about September 12, 1911, when a final settlement was attempted and effected except as to the item of interest claimed by plaintiffs on the payment of $6,400, which was to have been made on March 1st of that year. This interest, defendant refused to pay on the theory that the delay in payment beyond the date named in the contract had been caused by failure of plaintiffs to perform their agreement to provide an abstract showing a merchantable title and he had not himself been in default with reference thereto. Having reduced their matters of difference to this one item, defendant paid or made satisfactory settlement for the entire principal of the unpaid purchase price, in witness of which the parties entered into a written acknowledgment thereof, and among other things stipulated that such settlement should not be construed as a waiver or satisfaction of the demand for interest. Thereafter, this action was begun by the plaintiff to recover the amount of said omitted item. Trial was had in the district court and the evidence offered by
The argument put forward, that it works an injustice or hardship upon the appellant to require him to pay over his money and rely for reimbursement of the expense incurred in perfecting the record title upon the sellers, who may be insolvent, or non-resident, thus making the remedy so provided wholly ineffective, is beside the mark. Neither the law nor the courts force the appellant into such a position. As we have already pointed out, he did not avail himself of his right to stop at the threshold, and rescind or await plaintiff ’s performance of their undertaking, but upon faith that they would perform within a reasonable time, he went into possession, thus waiving his right to retain the cash payment, pending such performance. The result shows that his faith was well founded and within about six months the title was made satisfactory to him without any expense on his part. He has had and received everything, including possession from the outset, to which in law or equity he would have, been entitled, had plaintiffs been ready with their completed abstract of title promptly on the settlement day named in the contract. He has had the value of the use of the money withheld by him and he has had the use of the land for an entire season to which, without plaintiffs’ consent, he had no legal or contract right until he paid the agreed cash instalment. Yet with the earnings of the money and the earnings of the land both in his hands, he proposes to keep them all and account to plaintiffs for no more than the principal sum of his debt. There is no principle of law which will permit it. It would
What we have said governs all other material questions argued by counsel and we find nothing in any of them requiring a reversal of the judgment below. For the reasons stated, the judgment of the district court is — Affirmed.