133 Iowa 42 | Iowa | 1907
A former decision of this court affirming the decree of the lower court, with a slight modification, having been set aside on a petition for rehearing, the ease is now before us for redetermination. In the course of the various arguments many propositions of law have been announced, supported by citation of numerous authorities, but we think that the case can be disposed of by the statement of a few controlling facts about which there is no substantial dispute in the record, without elaborating the questions of
On the 2d of March, 1903 (the 1st of March falling on Sunday), there were negotiations between Lillienthal and one Snoke, representing defendant Bierkamp, with reference to the execution of a deed by plaintiffs to defendants. Snoke on behalf of Bierkamp insisted the deed should be made to defendants Bierkamp and Olaussen, and Lillienthal had with him a deed already executed to these two defendants which he offered to deliver to Snoke if there was any authority shown in accordance with which he could exclude defendant Struck from the conveyance. But at this time no such authority could he produced. In the absence of such authority, Lillienthal was ready to deliver a deed executed to the three defendants, but this Snoke refused to receive, insisting that Struck’s interest had been acquired by the other two defendants. Owing to this disagreement, no deed was then delivered, but Snoke proposed that $200 he retained by him for defendants until the title in plaintiffs could be made good, and the abstract could be perfected. Soon after the 28th of March an abstract was furnished to defendant Bierkamp by plaintiffs, which was still defective, and which defendants refused to accept, and immediately thereafter this action for specific performance was instituted.
We think that it must be conceded in view of the evidence that plaintiffs have never complied with their contract to furnish to defendants an abstract showing perfect title in plaintiffs, nor have plaintiffs since the 2d of March tendered any deed to defendants Bierkamp and Olaussen, although a release by defendant Struck to .his codefendants of his interest in the land has been procured by them; but plaintiffs have been ready and willing since the 28th of March to make such deed as might be properly required, and they allege that they have now a good and perfect title. We are relieved from going into any question as to the sufficiency of plaintiffs’ title by the fact that
The result is that the parties must stand, so far as this litigation is concerned, in the situation in which they have placed themselves by their own conduct, and we are not able under the record in this case to give any relief to either of them. We see no impossibility in the way of plaintiffs perfecting their title by proper proceedings so as to enable them to tender such an abstract as is required by the contract, nor do we say, on the other hand, that defendants may not be entitled by proper notice of rescission, and offer to put plaintiffs in statu quo to maintain an action for the recovery of the money paid and the forfeiture. There are no issues presented to us for present determination which involve decision as to the final rights of the parties in these respects.
The decree is reversed and the case is remanded to the lower court for such further proceedings as may be proper in view of the conclusions which we have here announced. — ■ Reversed and remanded.