47 Mo. 517 | Mo. | 1871
delivered the opinion of the court.
Defendant’s ancestor executed to the plaintiff a lease of certain lands in St. Louis county for the terna of one hundred years, which lease contained the following agreement:
“And it is further agreed that at any time within five years from the date of these presents, said party of the second part, his heirs or assigns, shall have the privilege of purchasing the fee simple of the aforesaid described tract of land hereby leased, the said party of the second part paying therefor at the rate of $200 per acre, one-fourth paid down in cash and the remainder to be paid in threé equal annual payments from the date of said purchase, with six per cent, interest thereon, payable annually, the whole to be secured by a deed of trust on said land. In case said party of the second part elects to buy said tract of land as above, he shall give said party of the first, part, or his legal representatives, thirty days’ notice, in writing, of his intention so to do.” *
Two days before the expiration of the five years the plaintiff gave notice to the defendants, who are the heirs of the lessor, of his election to purchase, and brings this suit for specific performance. It is admitted that if the plaintiff has complied with the contract in regard to the purchase, or that such compliance has been rendered unnecessary, he is entitled to a conveyance. 1. The lessee and plaintiff had the privilege of purchasing at any time within five years. 2. He was required, if he elected to purchase, to give thirty days’ notice of his intention to make a payment of one-fourth, etc.
It will be seen that the term of five years was not given him in which to come to a conclusion whether he would purchase or not. Nothing is said in the first paragraph upon that subject, although without the second the time when such conclusion had been arrived at would be of no importance. But the lessee must be ready to purchase and ready to receive a deed within the five years, and hence must have performed the conditions that would obligate the lessor to convey. These conditions were payment
The plaintiff claims also that the notice was in season — that it was sufficient to give it within the five years. But the notice must have reference to some future time or event or obligation. It can not mean thirty days before he forms an intention or makes an election to purchase, for it is a notice of such intention or election already formed. It must mean thirty days before the plaintiff is entitled to purchase, or the requirement has no significance, and he is not entitled to purchase after the five years. But the plaintiff objects that we deduct thereby thirty days from the time within which he may make his election, and thereby so far defeat the contract. This objection would be reasonable if the contract gave the plaintiff five years within which to form his intention ; but instead of that it gives him thirty days less than five years, by giving only five years to purchase, and requiring thirty days’ notice of his intention to do so. If there was a reasonable doubt in regard to the "Intention of the parties we might invoke the familiar maxim that doubtful conditions are to be construed most strongly against the^vendor. But there is no such doubt. So in regard to time, when a notice should be given of intended application to court. (Underwood v. Dollins et al., ante, p. 259.)
Such being the obvious meaning of the agreement, is this notice of the essence of this contract ? We often see the broad statement that in equity time is not of the essence of the contract, and as often the reverse. But the subject is hardly capable of such generalization. Contracts are made by parties and not by courts, and when it is obvious, from its examination,
It is claimed, however, that inasmuch as the vendor was dead, and those in whom the title vested could not convoy, the reason for the notice ceased and it should be dispensed with. But its object was two-fold: first, to give the vendor ample time to comply with his offer; and, second, it was the stipulated evidence of election to purchase — an election to be made and communicated at least thirty days before the expiration of five years; in a word, it was the acceptance of the offer of sale. Where there is a want of mutuality, as in offers of this kind, time is an essential part of the agreement, and the acceptance must be in accordance with the offer. There is no evidence that the plaintiff elected to purchase until twenty-eight days after he was required to communicate his intention. This election was as necessary after the death of the lessor as before, and the necessary action by the lessee could not be dispensed with by such death. It does not matter that defendants were unable to convey; the notice was not a demand for a deed, but a stipulated act that would so obligate the defendants that the court, as the guardian of the rights of infants, would order a conveyance — a stipulated act that would convert a proposition into a contract.
the judgment will be affirmed.