1 Blackf. 172 | Ind. | 1822
Bales brought an action of debt for 3,000 dollars against Leonard on a writing obligatory dated the 2d of March, 1819. On oyer, the following appeared, to be the condition of the bond: “The condition of the above obligation is such, that whereas the above bound David Leonard has this day purchased from the said Gilbert Bates all that tract of land whereon said Bates now resides, for the sum of 1,500 dollars; now should the said Leonard pay the whole of the purchase-money as follows, viz. 200 dollars this day, 600 dollars on or before the 1st of A-p.nil next, and the remaining balance of 700 dollar? on or before the 1st of October, 1820, then the above obligation to be void, otherwise in force.” To this action the defendant pleaded, that .he had purchased the land in the said condition mentioned, being the land whereon the said Bates then resided, and had executed the writing obligatory in the declaration mentioned, in consideration that Bates would make or cause to be made to him a good and sufficient deed in fee-simple for the land aforesaid, on or before the 1st of April, 1819; and for no other consideration whatever. And the defendant averred that although he did, at the days and times in the said condition mentioned, fully pay the plaintiff the two first instalments of the purchase-money for the land aforesaid, agreeably to the tenor and effect of the said condition; yet that the plaintiff, not having any right or title to the said land, neither did nor could, on or before the lyt of April, 1819, or at any time before or since, make or cause
The bond upon which this action was brought, was given in consideration of a certain specified tract of land; and the plain, honest doctrine is, that if the seller could not, or would not, convey it to the purchaser, he had no right to the purchase-money. Let us examine what the law says upon the subject. Had it appeared from the face of the bond that the consideration was executory, and that the promise to pay the money for which the suit was brought, was in consideration of a good title for the land first to be made by the obligee, the plaintiff could not have recovered without an averment and proof of the performance of, or an offer to perform, his part of the contract; and the non-performance of such precedent condition would have been a good defence to the action at common law. This executory nature of the consideration, however, does not appear from the obligation itself; and therefore, as no fraud is alleged, this plea could not have been supported at common law, where the mere want or failure of consideration is no objection to the validity of a bond. 1 Plowd. 308. — 2 Johns. R. 177. In this country, by statute, the obligor has a right by special plea to go into and impeach the consideration of a specialty; and thus not only to show it void ah initio, which he might have done before, 2 Wils. 347, but also to show that it ought not to be paid in consequence of the want or failure of consideration
The first instalment of 200 dollars was payable on the day the bond was given, and a month before the conveyance was to be executed: of course, that promise on the part of Leonard to pay so much, was independent of Bates agreement to make the deed at a subsequent period. By obligating himself to pay this sum of .200 dollars, a month before he was to have the deed, Leonard, became liable to pay it when due, and trust to his remedy against Bates, if he should afterwards fail to make the title. 1 Salk. 171.
It has been argued, that the agreement by the plaintiff to make this deed, and not the actual doing of it, was the consideration of the defendant’s promise to pay; that there was only promise for promise; and that the breach of one was no excuse for that of the other. The time for the conveyance, being prior to that for the payment, excludes this argument, and shows that the intention of the parties was, that the performance of the contract to convey should precede the payment of this part of the purchase-money. But, independently of this precedence of time, it is now very well settled, that where the covenant to convey, and that to pay the price, are to be performed on the same day; or where no time is fixed for the performance of either, but one is to be complied with in consideration of, or on compliance with, the other; the covenants arc depend-ant, and neither party can sue without showing a prior performance of, or an offer to perform, his part of the agreement. This doctrine may not be perfectly compatible with all the old cases on the subject of dependant and independent covenants, but it is fully established by the modern authorities, and seems best calculated for the mutual security of the parties, and the prevention of a multiplicity of law suits. Callonel v. Briggs, 1 Salk. 112. — Kingston v. Preston, Doug. 689. — Jones v. Barckley, ibid. 684. — Goodisson v. Nunn, 4 T. R. 761. — Glazebrook v. Woodrow, 8 T. R. 366. — Cunningham v. Morrell, 10 Johns. R. 203
In the case we are considering, the agreement of Bates to make a good title, for the premises on which he then lived, to Leonard, on or before the 1 st of April, 1819, was the whole consideration of Leonard?s promise to pay, at a subsequent time, this third in
The judgment is reversed with costs. Cause remanded, with directions to permit the plaintiffbelow to withdraw his demurrer, and reply to the plea.
Stal. 1817, p. 39; — 1821, p. 86; — 1823, p. 294-5.
There are many nice distinctions in the books between independent' and dependant covenants and promises; but justice requires them, as far as possible, to be considered dependant. When, in a contract for the sale of land, they are so considered, neither the vendor nor vendee can compel the other to fulfil his contract, without making his part of the agreement precedent, nor can" either proceed against the other, without an actual performance on his part, or a tender and refusal. law, the time fixed for the performance is of the essence of the contract; and if the seller is not ready and able to perform his part of the agreement, on that day, the purchaser may elect to consider the contract at an end. But equity, which, from its peculiar jurisdiction, is enabled to examine into the cause of delay in completing a purchase, and to ascertain how far the day named was deemed material by the parties, will, in certain cases, carry the agreement into execution, although the time appointed has elapsed. Bank of Columbia v. Hagner, 1 Peters, 455.
It is a settled rule at law, that, when a particular day is fixed, on which the purchase-money is to be paid and the deed executed,'thc vendor, to recover the purchase-money, must aver a performance of his part of the contract, or an offer to perform it, on the day specified for the performance; and must prove the averment, unless the tender has been waived by the purchaser. A tender of the deed, at a subsequent day, is not sufficient. Nor is a tender at the day, if the vendor have not the legal title. Ibid.