193 Iowa 29 | Iowa | 1922
— As stated, this is an action to compel the
On July 26, 1919, appellant leased the west one half of Section 22 to one Theodore Kroger for the term of one year, commencing March 1, 1920. Before discussing the effect of the notice given by appellee of his election to forfeit the contract, and of the terms of the ivritten tender served upon appellee, we desire to call attention to certain material provisions of the con
“Second party will assume a first mortgage to be placed thereon * * * and will give back mortgages for the difference between said first mortgage and $80,000. due March 1st, 1930, with interest at 5 per cent from March 1st, 1920.”
In his written tender of April 3d; appellant stated:
“He also hereby tenders to you a mortgage on said northwest one fourth of twenty-two and the northeast one fourth of Section twenty-one, Township ninety-six North, of Kange forty, signed by J. P. Marx only, the same securing the payment of the sum of forty-nine thousand ($49,000.00) dollars, as evidenced by notes which are also hereby tendered, said notes signed by J. P. Marx only, and bearing interest at five per cent from March 1st, 1920, and due Mar. 1, 1930, said interest not being payable annually as provided in said contract.”
It is stipulated in the record that, on April 25, 1920, W. J. Bennett, grantee of Samuel Parker, by himself and wife executed and acknowledged a warranty deed conveying the west one half of Section 22 aforesaid to appellant, and delivered the same to appellee; that Luella L. Hughes, prior to March 1st, executed a warranty deed conveying the northeast quarter of Section 21 aforesaid to appellant, and delivered the same to appellee; that, prior to March 1, 1919, Edyth B. King and her husband, appellee herein, executed a warranty deed conveying the northwest quarter of Section 22 aforesaid to appellant, and delivered the same to appellee; and that, on June 1, 1920, Edyth King and her husband by special warranty deed conveyed said land to Luella L. Hughes, subject to a mortgage of $15,000.
Although it does not otherwise appear in the record, the court found that the contract between the parties was partly printed and partly in typewriting. So far as material, the printed portion of the contract is as follows:
“In case the said second party, his legal representatives or assigns shall pay the several sums of money aforesaid punctually, and- at the several times above limited, and shall strictly and literally perform all and singular the agreements and stipulations aforesaid, after their true tenor and intent, then the first party will make unto the second party, his heirs and assigns,*32 upon request and surrender of this contract, a deed conveying said premises in fee simple, with the ordinary covenants of warranty, and furnish an abstract of- title to date, showing clear, merchantable title, except the incumbrances designated herein.”
The typewritten part is as follows:
“At which time first party will furnish warranty deeds to said premises.”
The contention of appellant is that the provision of the contract requiring the execution by him of certain mortgages upon the premises, to secure notes maturing March 1, 1930, does not contemplate the payment of interest annually, but only at the maturity of the notes; and it is the contention of appellee that, under the provisions of the contract quoted above, he is required only to furnish a warranty deed from the record owner of the land, and that the contract does not bind him to personally convey the premises to appellant.
“When an instrument consists partly of written and partly of printed form, the former controls the latter, if the two are inconsistent. ’ ’
Furthermore, does the word “furnish,” as used in the contract, relieve appellee from the.duty to execute the deed himself? The rule is well settled that, where one party agrees to convey to another, by warranty deed, land the title to which is vested in a third person, tender of a deed by such third person is not sufficient.- Warvelle on Vendors (2d Ed.), Section 347; Rudd v. Savelli, 44 Ark. 145; Crabtree v. Levings, 53 Ill. 526; Bigler v. Morgan, 77 N. Y. 312; Weitzel v. Leyson, 23 S. D. 367 (121 N. W. 868) ; Steiner v. Zwickey, 41 Minn. 448 (43 N. W. 376); Gottschalk v. Meisenheimer, 62 Wash. 299 (113 Pac. 765); Paul Co. v. Shaw, 86 Kan. 136 (119 Pac. 546); 27 Ruling Case Law 520.
Another rule of general, if not universal, acceptance is that a purchaser cannot be required to accept a conveyance from a third person, even though a good title is thereby conveyed, unless it is so stipulated in the contract. James v. Burchell, 82 N. Y. 108; Miner v. Hilton, 15 App. Div. 55 (44 N. Y. Supp. 155); Gaar v. Lockridge, 9 Ind. 92.
In each of the above cited cases, the contract involved provided that the vendor “would convey or cause to be conveyed,” and the court held that the purchaser was not bound to accept the deed of a third party, although it contained full covenants of warranty. Whether or not the latter rule should be applied to the provisions of the contract in question, it is clear that there was no such inconsistency between the written
While the record is ominously silent as to many important matters, it is clearly manifest therefrom that both parties have at all times treated the contract as still subsisting. Plaintiff brought this action for specific performance, asking, as alternative relief, for judgment for $13,000, with interest from March 1, 1920, and also for damages in the sum of $20,000. While appellee pleaded a forfeiture of the contract, in argument in this court he disavoivs any purpose to insist thereon, and asserts his willingness to execute to appellant a deed with personal covenants, if preferred by him.
Manifestly, under these circumstances, appellee may not retain the portion of the. consideration paid and refuse to carry out the obligations assumed by him in the contract. Some contention is made by counsel for appellee that appellant, at the time the contract was entered into, knew that appellee did not own any part of the land, and that no objection to the title.was made by him in the-court below. The record does not disclose whether appellant knew that appellee was not the owner of the land at the time the contract was entered into, but it does show that, in his written tender, he demanded a personal conveyance from appellee. The contract required appellee to furnish an abstract showing a clear, merchantable title, except as to the incumbrances mentioned in the contract. The record does not show whether an abstract was furnished appellant or not. We
The decree of the court below must be modified so as to require appellee to furnish an abstract showing a good, merchantable title in him to all of the land described in the contract, subject to the incumbrances named, and to execute to appellant a deed containing the usual covenants of warranty, upon appellant’s paying the balance of the purchase price and otherwise complying with the decree of the lower court, which provided that the form of the notes and mortgages to be executed by appellant should be such as to require the payment of interest annually at the agreed rate. The decree should also allow a reasonable time, say 30 days, for each party to perform the terms of the contract as above interpreted, and should further provide that, in the event appellee fails or refuses to furnish abstract showing a merchantable title, and to tender a warranty deed executed by himself and wife, conveying said premises to appellant, within the time fixed by the court, judgment be entered against him for $13,000, with interest at 6 per cent from March 1, 1920. In all other respects, the decree is permitted to stand. It follows that the cause must be and is remanded to the court below, for decree in harmony with this opinion. The costs in this court will be taxed to appellee. — Modified and remanded.
