13 Iowa 313 | Iowa | 1862
The points in controversy in this case involve a construction of the agreement of January 5,1855, and especially the last clause thereof. Two questions arise: First. Was a demand necessary to entitle respondents to a deed of lot three. , Second. In computing the amount paid upon the principal sum, to entitle them to such deed, was it proper to include the $764 paid before the execution of the bond, styled, in the agreement, the “ hand money.”
It is familiar law that all parts of the contract are to be weighed and considered in giving it a construction. Equally
In this case there is an express provision that before the vendor, (after all the purchase money is paid, with the taxes to accrue,) would be in default, he shall “be called upon afterwards” to convey. A failure to make this demand would not release him from his obligation, but as he would, not be in default, if the vendees had in all other respects complied with their undertaking, they would be entitled to a performance, at their own costs. This is the view of the contract, when looking to the language used, prior to the concluding clause, and upon the hypothesis there contemplated, that the whole purchase money and taxes should be paid and kept up. After this, however, there is a further agreement, which binds the vendor and gives to the vendees rights, in a manner and to an extent not before specified. Taking all three provisions together, what is the true construction.
In the first place, our opinion is, that the “ further” clause was inserted for the benefit and convenience of the vendees. Without this, they were bound by the strict terms of the agreement to pay the entire consideration, before they could compel a conveyance of either of the lots. Such property, however, being the legitimate object of trade and speculation, as the greater part of the principal sum was not to be paid for ten years, and as by the possible advance in the value, in the meantime, of each or some of the tracts, they might, by disposing of the same, raise means to meet their agreement, this further agreement was .entered into to enable them to accomplish their purpose. .But suppose they paid $500,. $1,000, or 2,000, or more, .Were they entitled, without more, to a deed to some specific
This conclusion receives much support, in the second place, from several considerations, which may be briefly noticed. And first, it will be seen that the vendees were to bear and pay the expense of such contemplated conveyances. If so, it is a fair and natural construction that they were expected to have prepared, and present for execution, the desired conveyance. Not, be it understood, that if they demanded a conveyance, the vendor could excuse himself because the vendees did not prepare and present the deed; but this clause or requirement tends to show that they were to be the active, and the vendor, to some extent, the passive party in the execution of the agreement. And this thought is in harmony with the prior provision that the vendor was to make a deed when called upon.
Again, by the “ further” agreement, the vendor could not know what lot was to be conveyed, until demanded. By paying $500, for instance, the vendees were not restricted to claiming a deed to one of the lots numbered one, two, four and five, but at their election, they could require a conveyance of one of those estimated as worth $290.07. So, when they paid $2,000, they might exact a deed for either or all of said four lots, valued at $500 each, or they might take lot No. 3. In a word, it seems to us that the parties, after reducing their contract to writing in the usual form, then, in view of the great number of lots, the difference in their respective values, the length of time the contract had to run, and other considerations, such as the
Respondents have, however, by their cross-bill, elected to take lot three. This they are entitled to, paying costs, if they have paid sufficient, according to the terms of the contract, to entitle them to it. And this brings us to the second question, whether the $764, or the “hand money,” shall be estimated in making up the $2,000, which was to be paid before the deed could be demanded. And it seems to us that it should. This construction is certainly not in conflict with the language used. And while it is true that the words “ upon the payment to me of $2,000,” would seem to imply a subsequent payment, yet there is a consideration that to our minds is of controlling significance. This contract was made, and all its terms agreed upon, in November, 1854. Then it was that the $764 was paid. It was not reduced to writing, however, until in January, 1855. The notes for the greater part of the purchase-money had already been executed. This agreement, made in January afterwards, should be construed, in considering the question, as if made at the time of the execution of the
Upon the whole, we conclude that appellees are entitled to a deed to lot three, but that it is liable to all taxes and charges of every kind and description paid thereon by appellant, that these should be required to be paid, by a day named, and in default thereof, that it, with all the other property, should be sold to satisfy the amount found due the appellant by the court below, and that appellees should pay all costs.
The cause will, therefore, be remanded, with instructions to modify the decree accordingly. In all other respects, the decree below will stand affirmed.