53 Neb. 5 | Neb. | 1897
Frank L. Gregory filed his petition in the district court of Douglas county alleging that William J. Maxwell, pretending and representing himself to be the owner in fee of lot 3, block 21, in West Omaha, had sold said lot to said plaintiff and had entered into a written agreement with said plaintiff evidencing such sale. By the terms of this agreement, pleaded in the petition, Maxwell agreed to sell to Gregory the whole of the lot above described for the consideration of $1,500, of which consideration $500 was to be paid at the date of the delivery of the contract, which was June 2,1887, and the balance in three equal annual payments to be made June 1 of each of the years indicated. By this contract Gregory Avas required to pay and discharge all taxes and assessments imposed on said property from.the date of said agreement, within three months from such times as the same should fall due. There Avas contained in this contract the folloAving provisions: “Forthwith after second payment of said purchase money, taxes, and interest as aforesaid, time being of the essence of this contract, the party of the first part [Maxwell] agrees to execute, or cause to be executed, to the party of the second part a good and sufficient warranty deed for the said lot three, to be delivered on the surrender of the duplicate contract.” The petition contained averments that, at the date of the contract, Gregory, relying upon the representations of Maxwell that he could and would make good title, had paid the sum of $500 as requiréd, and in 1888 and 1889 had paid- taxes and assessments to the amount of $30.47; that on August 10, 1893, he had tendered to Maxwell the sum of $1,599.52, the amount due under the contract, and requested that a deed be executed in accordance with the-provisions of said contract whereby* Maxwell had bound himself to make such conveyance. It Avas alleged that MaxAvell had not made the conveyance demanded, and was unable to do so by reason
It is urged that Gregory acquiesced in the delay necessary to settle the litigation between Maxwell and Higgins. An examination of the evidence discloses the facts that he was ready to perform at any time, and repeatedly signified this willingness to Maxwell and Maxwell’s agent in this matter, but was put off from time to time by one excuse and another until the final adjudication was had in the case of Maxwell against Higgins. The plaintiff in error cannot be heard to found objections upon this forbearance for his own benefit and at his own instance.
There was no attempt whatever to show the existence of any tax deed, so that we are not called upon to discuss questions which the existence of such a title under the circumstances pleaded in the answer might have raised. The judgment of the district court is
Affirmed.