36 Neb. 384 | Neb. | 1893
This is an action brought by the plaintiff in the district court of Otoe county to have a certain contract for the sale of lots 1, 2, 3, 4, 5, and 6, in block 168, in Nebraska City proper, canceled and held for naught, and to have a mortgage executed by one Boies to Paine & Co., in 1874, declared barred and satisfied, etc., and to quiet and confirm the title in the plaintiff. The contract under which the Goodletts hold is as follows : “I, S. N. Merriam, am held and firmly bound unto Jennie H. Goodlett in the sum of $1,500, conditioned that I will, time being the essence of this contract, on the first day of September, A. D. 1888, and on the full payment of her promissory note for $100 due on said date, payable to W. D. Merriam, make, execute, and deliver to said Jennie H. Goodlett a warranty deed, except for the taxes accruing after that for the year 1881, for the following described real estate, to-wit: One, two, three, four, five, and six (1, 2, 3, 4, 5, and 6), in block one hundred and sixty-eight, Nebraska City, county of Otoe, state of Nebraska.
“ Conditioned also that the said Jennie H. Goodlett, at the same time, execute and deliver to me a mortgage on said premises to secure three promissory notes for three hundred dollars, each bearing date on this day, payable to W. D. Merriam, in which mortgage her husband, John A. Goodlett, shall join, and provided said Jennie H. Goodlett shall insure said property, not less than six hundred dollars, for the benefit of said W. D. Merriam in case of the non-payment of any of the three said promissory notes and in case of loss of houses and premises by fire, said insurance policy
“S. N. Merriam,
“By W. D. Merriam,
“His Attorney in Fact.
“In presence of
“G.W. Covell.”
This is duly acknowledged.
There is a second count in the petition for rents and profits.
Paine & Co. answer in effect that Boies executed amortgage for $1,200 to them in 1874; that no part of the same has been paid; that Boies has been absent from the state nearly all the time since said mortgage became due, and that the same is now due and payable.
Goodlett and wife answer, in effect, that they have paid the interest promptly on said purchase as the same became due, and that such payments were accepted and credited to them by ~W. D. Merriam. They also allege that W. D. Merriam is the real party in interest in the case, and ask that he be made a plaintiff. They also allege that in 1888 they tendered the whole amount due on said lots to W. D. Merriam and demanded a warranty deed as provided in said contract, but the said Merriam refused to execute the same. They also allege that Paine & Co. claim a lien on the premises by virtue of said mortgage. They also allege that one Mathes did possess a tax lien on said lots, which he has assigned to Merriam.
In reply the plaintiff alleges proceedings in the United States circuit court for the foreclosure of tax liens on the premises and that he purchased the same under the decree.
On the trial of the cause the court held that W. D. Merriam was the real party in interest and was declared the plaintiff; that plaintiff’s petition be dismissed ; that Paine & Co. have a foreclosure of their mortgage, the amount found due exceeding $5,000; that the amount due from
It appears from the testimony that in 1878 Thaddeus W. Boies, the then owner of the lots in question, filed a petition in the district court of Otoe county to have the taxes and tax deeds of Selden N. Merriam on the lots in question declared null and void and not a cloud upon his title to the same. This cause, on the petition of Merriam, was removed into the United States circuit court for Nebraska. An answer was filed in that court, and in 1880 the following decree was entered:
“On reading and filing the said report of said Dwight G. Hull, master in chancery of this court, which report bears date the 31st day of May, A. D. 1880, and was in pursuance of an order of the court, heretofore made in this cause, referring it to said master to report the facts and find the law in said cause, from which it appears that the complainant, ThaddeusBoies, was the owner and in peaceable possession of lots numbered one, two, three, four, five, and six, in block numbered one hundred and sixty-eight, in Nebraska City, Otoe county, Nebraska; that on the 23d day of February, A. D. 1876, the said lots above described were sold by the then treasurer of Otoe county for the delinquent taxes of 1873, at private sale, by the assignee of defendant Merriam; that the holder and owner of said tax certificate has paid the taxes upon the said lots both prior and subsequent to said date; that from 1869 to 1875'the complainant had abundance of personal property in Otoe county out of which said taxes might have been made; that the tax sale of said real estate was
“And it is further ordered, adjudged, and decreed that, the said complainant, Thaddeus W. Boies, pay, or cause to be paid, to the respondent, Selden N. Merriam, the amount so reported due as aforesaid, together with ten per cent interest thereon from the date of said report, to-wit, the 31st day of May, A. D. 1880, on or before the 12th day of May, A. D. 1881. And in default thereof, that all and singular the said premises described and mentioned in said master’s report made in this cause, to-wit, lots numbered one, two, three, four, five, and six, in block numbered one hundred and sixty-eight, in Nebraska City, Otoe county, state of Nebraska, or so much thereof as may be sufficient to raise the amount due the respondent for said principal and interest in this case, and which may be sold separately without material injury to the parties interested, be sold at public auction, by or under the direction of William Daily.”
The court then proceeds to direct the procedure in conducting the sale, and taxed the costs, amounting to $116.45, io Merriam.
“1. Time may have become of the essence of the contract by the rise or depreciation of the value of the prem
“2. Time may be of the essence of the contract, by reason of the nature of the interest in the property which is to be conveyed. Contracts for the purchase of stock are of this description; and the reason assigned is that the daily fluctuations in the price would render a punctual performance-off the essence of the contract. (See 4 Ves., 492; 1 Sim. & Stew., 59.) So also in the case of the sale of a reversionary interest, where the vendor may be supposed to be in want of the consideration money, and to whom it is of importance that the money should be paid punctually. (Newman v. Rogers, 4 Bro. C. C., 391; Ormond v. Anderson, 2 Ball & Beat., 370.) So where there is an agreement to sell at a valuation, to be made within a certain time, by persons who are named. (6 Mad., 26.) So also in a sale of a lease depending on lives. (Ormond v. Anderson, 2 Ball & Beat., 370.) There a distinction is taken between such a case and a case of purchase, where time is said, to be not of the essence of the contract, as a compensation for the delay may be paid in the interest, etc.
“3. Time may be of the essence of the contract when there is an express stipulation to that effect, and where the contract is executory at the time of the default; no part or no considerable' part of the purchase money having been paid. And this is on a very plain principle, to-wit, that the performance, by the vendee, is a condition precedent to the performance of the contract by the vendor. It is believed that most of the modern cases which have been sup
He also cites the cases where time has been the essence of the contract, but there has been a waiver by accepting payment while the vendee was in default. A court of equity looks to the substance of a contract, and when that is fulfilled and the general intention of thé parties carried into effect, the court will relieve from any forfeiture or penalty inserted for the purpose of enforcing the contract.(Jeremy, Eq. Juris., 470; Fonbl. Eq. (4th Am. ed.), 130; Edgerton v. Peckham, 11 Paige [N. Y.], 358.) In the case at bar the substance of the contract was a sale of the lots in question to the Goodletts for a specified price with annual interest. The Goodletts, in pursuance of the contract, entered into possession and have retained the possession, paying the taxes and expending considerable sums in improvements thereon, etc. The interest has been paid or tendered up to the time of bringing this suit. There is no circumstance, therefore, that would make time the essence of the contract and thus rob the purchaser of his estate. But even if time was the essence of the contract, it has been waived by the acceptance of the interest while the Goodletts were in default. They are, therefore, entitled upon payment of the purchase price to specific performance of the contract.
It will be observed that Merriam derives his title to the .lots in question through a decree of the United States circuit court foreclosing tax liens, and a sale thereunder, which was duly confirmed and a deed made to the purchaser. It will be observed also that many of these taxes antedate the mortgage to Paine & Co. Taxes assessed upon real estate constitute a lien thereon from the first day of April in each
Judgment accordingly.