159 Iowa 31 | Iowa | 1913
The general nature of this controversy is outlined in the preceding statement, and the grounds relied upon for a reversal may be briefly summarized as follows: (a) The title offered Stout was not such as he bargained for. (b) The deed tendered by the referees did not comply with the terms of the sale; and, having elected to rescind, there was a mutual rescission, and Stout was entitled to .the return of his money, (c) The contract did not provide for a forfeiture ; and, the referees having elected to rescind and resell, Stout was entitled to the return of his money, (d) Stout was
In actions between vendor and purchaser, if the purchaser, without just cause, refuses to complete his contract, he cannot, in the absence of some promise or agreement, demand the return of the consideration paid. Warvelle on Vendors, page 949; Lawrence v. Miller, 86 N. Y. 131; Bakeman v. Pooler, 15 Wend. (N. Y.) 637.
Again, even in ordinary sales where a vendor has received the purchase money for land which he has agreed to convey, if no time be specified, he is entitled to a reasonable time within which to make a conveyance, and in such case there should be a demand of a deed and a refusal, before a suit for the return of the purchase money will lie. Kime v. Kime, 41 111. 397. How far these rules are applicable to judicial or referees’ sales will be hereafter considered.
Moreover, in the proceedings asking for a resale, the referees in their application recited the following facts:
Come now the referees in the above-entitled partition proceeding and state to the court that heretofore, to wit, March 8, 1911, they sold at public sale, under the orders and directions of the court, the following described real estate, to wit: [Here follows description.] That said land was sold on said date to one A. N. Stout, who was the highest bidder therefor, bidding for the sum of $3,600, $500 cash down, and the balance to be paid upon delivery of deed and abstract; that said sale was duly approved by the court on the 13th day of September, 1911. They further state that they have presented to said A. N. Stout a referees’ deed therefor, together with an abstract of title for said land, but that said A. N. Stout refused to comply with his part of the contract to purchase, and refused to pay the amount due from him, and still neglects and refuses to pay therefor, and that he has now forfeited all his rights to said land and to the $500, which he paid at time of sale. Wherefore, said referees ask the court to set aside said order approving sale to said A. N. Stout of said land, and which order was made on September 13, 1911, and .that the deed to him be set aside, and that said sale be set aside and held for naught, and that they be directed to readvertise the said land to be sold at public sale in the manner required by law, and sell the same at public sale after giving due and legal notice thereof.
It was pursuant to this application that the order for resale was made; and it will be noticed that in this they claimed the right to retain the $500 because of Stout’s default. There being, then, no rescission or abandonment, we go now to the other grounds relied upon for a reversal. These are, in substance, that the proceedings were defective, that the title tendered was not merchantable, and that, by reason of these facts, Stout is entitled to recover back the purchase money paid.
The rule announced in Freeman on Cotenancy and Partition is as follows: “If errors and irregularities occur in the course of the proceedings, but are not of a character such as to render the sale in partition void, in whole or in part, they have no prejudicial effect on the purchaser. If the parties against whose interests the errors and irregularities were committed take no steps to set aside or otherwise avoid the sale, the purchaser, by reason of their acquiescence, can acquire their title, and must therefore make good his bid.” The writer cites the following in support of the text: Rogers v. McLean, 34 N. Y. 536; Mead v. Mitchell, 17 N. Y. 211 (72 Am. Dec. 455); Croghan v. Livingston, 17 N. Y. 218; Dunning v. Dunning, 37 Ill. 315. We have examined them and find that they do so. Again the same text-writer says: “A sale in partition is a judicial sale. The purchase is protected by the judgments of the court as fully as in any execution or judicial sale. The various matters necessary to authorize the sale have all been made the subjects of judicial inquiry and determination. If the court' acted erroneously in deciding upon the sale, or committed any other error, this should have been corrected by appeal or by some other appropriate proceeding in the partition suit. Not being so corrected, the parties interested have acquiesced in and ratified it, and they
Complying with the verbal notice heretofore given you during the month of April, 1911, I demand of you, and each of you, the return of the money deposited, being the sum of five hundred ($500.00) dollars, which money was deposited as earnest money, wherein I had arranged to purchase certain property from you in certain partition proceedings in the above-entitled cause, and wherein you agreed to. sell said property, but by reason of the imperfect and defective title you were unable to comply with the terms of your agreement, whereby you were to convey said premises during the month of March, 1911, and that by reason of your inability at that time to furnish me a good title, I advised you in the month of April, 1911, that I would not take said property and would require you to return the money delivered, to wit, five hundred ($500.00) dollars.' You are now notified that I demand of you, and each of you, the return of said money, to wit, the*40 sum of ($500.00) five hundred dollars. Dated this October 24th, 1911. A. N. Stout.
It will be noticed that Stout placed his notice of rescission upon what had been done in April, and that he made no-other complaints of the title than those which appeared at that time. The referees had a reasonable time within which to cure the defects appearing upon the abstract which were pointed out to them, and this was done. As a rule, wrhere a party gives a reason for his- conduct, and plants his objections upon certain grounds, he cannot, after the other party has gone to expense and cleared up all these defects, make his objections upon other and distinct grounds. In other words, he cannot, after litigation is commenced, “mend his hold.” Donley v. Porter, 119 Iowa, 542, and cases cited.
The defects thus pointed out were cured within a reasonable time, and Stout then made no other objections than the ones first insisted upon. It is said, however, that the referees did not tender a deed and demand the money after the defects were cured. But this is a mistake, as. the record will show. But, however this may be, Stout, in order to recover, would, under the facts disclosed, as it seems to us, be compelled to tender his money and demand a compliance with the contract. Rutherford v. Haven, 11 Iowa, 587; Washburn v. Carmichael, 32 Iowa, 475; Grimmell v. Warner, 21 Iowa, 12; Winton v. Sherman, 20 Iowa, 295; Hayward v. Hunger, 14 Iowa, 516.