45 Mo. 124 | Mo. | 1869
delivered the opinion of the court.
One J. B. Dover was indebted to the plaintiff in six promissory notes for $383.33 each, dated February 2, 1858, due, with interest, in from one to six years respectively, which notes were secured by deed of trust upon the property in controversy. Dover paid the first two notes, and the plaintiff sold to defendants the third and fourth. The notes thus sold to defendants'' not being paid, they directed the trustee to offer the property for sale, and the plaintiff bid it off, but was unable to pay his bid, whereupon it was again offered, and bid in by the defendants for $530, which sum was applied in payment in full of one of the notes, and a small balance upon the other. Soon after this sale, upon complaint of loss by the plaintiff, the defendants told him that all they wanted was the money advanced for the notes they purchased, with interest, etc., and offered, if he would repay the same, to sell him the property; and accordingly, on the 6th of May, 1861, they executed to the plaintiff’s trustee a bond to convey him the property and deliver up the fourth note of Dover, which he had sold them, upon condition that he should pay them $507 on the 12th of June thereafter, and $408.24 on the 2d of February, 1862. This bond was given to John O’Fallon, for the use of the plaintiff, and assigned to him before suit by the heirs of the obligee. The $507 represented Dover’s third note, with interest, and costs and expenses, and the $408.24 represented the fourth note. There was no express obligation on the part of the obligee of the bond, or of any one else, to pay these sums ; but the bond contained a stringent claim of forfeiture if they were not paid. Neither of these payments were made, although the plaintiff claims that in June, 1862, the second amount was included in a transaction between the defendants and Sophia O’Fallon, for the use of Charles O’Fallon, and paid July 1, 1863. There is much obscurity in the testimony as preserved in relation to this
The petition in this case is mixed, and it is quite uncertain whether the plaintiff relies upon his general equities as holder of the fifth and sixth notes given him by Dover, secured by the trust deed and still unpaid, or whether upon his rights as beneficiary of the bond. If the sale by the trustee is to be held valid, the property became vested in the defendants, relieved of all the plaintiff’s equities, and he must rely alone upon the bond. The validity of that sale can be no longer questioned, as it has been twice sustained by this court — once in Dover v. Kennedy et al., 38 Mo. 469, and again in the same case, decided at the October term, 1868, 44 Mo. 145 — and we can only consider the rights of the plaintiff under the bond. The plaintiff alleges that it was given in pursuance of a verbal agreement made before the sale, that the Kennerlys alone should bid, and should then give him further time, or rather the benefit of the bid. Without giving any opinion upon the.legal effect of such agreement, it can not be regarded as proved, inasmuch as it depends alone upon the oath of the plaintiff, who is expressly contradicted by the testimony of the defendants, whose testimony is indirectly confirmed by that of Dover, who was introduced by the plaintiff.
There is no doubt that equity may decree a specific performance of a contract for sale of property, notwithstanding a default in payment upon the day specified. The books are- full of instances where such relief has been granted, and in many cases where there is an express stipulation of forfeiture. But this relief has always been afforded upon equitable principles/ It will by no means be given as a matter of course, but some circumstances must exist to show that the party is justly entitled to it; as, for instance, where the purchaser has gone into possession
The whole equity of this case, so far as it seeks specific performance, depends upon the truth of the plaintiff’s claim that the second payment was made by him, or on his behalf, after the whole was due, and accepted as such by the defendants. If that claim be true, the forfeiture is waived, and, upon tender of the balance, the plaintiff has a clear equity ; but upon this point the evidence is far from clear. The plaintiff testifies that he paid to defendants the consideration of a certain bond for the sale of other land, given by them to Mrs. Sophia O’Fallon, amounting to about $2,700, which sum included the second payment conditioned in defendants’ bond to him. He fails to explain how he came to pay this second bond; how this payment in his own bond came to be embraced in it; why he made his second payment first, or .what interest he had in the latter bond. But the testimony of Wm. C. O’Fallon and the copy of the bond may throw a little light upon it. From that testimony it appeal’s that the bond to Sophia O’Fallon was given for the benefit of Charles O’Fallon, who was an indorser of the Dover notes sold defendants, and was liable upon them; so that yyhen the defendants gave Sophia O’Fallon this bond for the use of Charles O’Fallon, the latter ivas owing them the amount of the fourth Dover note, less the small indorsement, which would be a good reason for including it in consideration of the bond. This bond was executed some months after all the payments were due on the one given to plaintiff, and its consideration was to be paid over a year
But there is another fatal objection to the plaintiff’s equity. No tender of the amount due upon the bond has been made. The-plaintiff swears that he was ready to pay and offered to pay, but admits, on cross-examination, that he has never tendered the.money, and gives no sufficient excuse for not doing so, while the.defendants swear that he has never offered them anything. If' time is not of essence, payment certainly is-, and the purchaser-can have no equity without offering to pay the purchase money..
The judgment of the Circuit Court was for the defendants, which was properly affirmed by the District. Court.