90 Mo. 346 | Mo. | 1886
This is an action of unlawful detainer, begun before a justice of the peace, and afterwards removed by certiorari to the circuit court, where, upon a trial, the court gave an instruction, in the nature of a demurrer to the evidence, and entered judgment for the defend-, ants. It may be observed, that the evidence contained in the record does riot show, as completely as could be desired, the relations and dealings of the parties with one another. In fact, the whole proceeding seems to have been conducted somewhat loosely, and in a manner not calculated to protect and preserve rights of the parties, as fully as they should have been. So far as clearly disclosed, the material facts seem to be, that plaintiff (the nature of whose claim on the land does not fully appear, from the evidence in the record), in the year 1879, rented the premises in dispute, to one Mayabb — a part of the lands for the year 1879, and other parts thereof for the years 1879 and 1880. In the latter part of 1879, plaintiff verbally contracted with defendants
After this, plaintiff and defendants went to the railroad land office, at Springfield, and plaintiff then told the company’s land agent, that he had sold to defendants the land in question, and that he wanted the company to make a deed to them for the land. The company refused to sell for the sum plaintiff offered. What the amount of his said offer was, does not appear. After-wards, defendants again demanded of plaintiff a deed for said land, telling him they were ready to pay the money, when he again said, that he could not make a deed. They then stated to plaintiff, that, if he did not make them a deed, they could, and would, buy of the railroad company. Plaintiff replied: “If the railroad company is fool enough to sell to you, you will have a happy time getting possession of the land.” After-wards, defendants bought of the railroad company, paying four hundred dollars and getting a deed from it. These are the material facts, so far as we are able to. gather them from this imperfect transcript.
We do not feel called upon to define, with any particularity, in this case, the technical legal relations, which subsisted between these parties, under these circumstances. Indeed, there is considerable diversity, if not confusion, among the cases, as to the nature of the relation, between a vendee in possession, under a con-, tract of purchase, and the vendor. In this case, the
But that is not this case. The plaintiff, himself, has first broken and repudiated, or failed to carry out, his part of said contract. By the terms of said verbal contract, plaintiff was to make the deed, and the defendants to pay the purchase money. Neither party was bound, by its terms, to perform the first act, and, under the law, they would be bound to perform their respective parts simultaneously, or, at most, either party would have a reasonable time to perform, after the offer to perform by the other. When, therefore, the defendants offered to pay the purchase money, and demanded a deed, which they did several times without avail, this was a compliance with the requirements of the contract, on their part, and gave them a clear right to a conveyance, as they had a right to retain the possession, and ■insist on the execution of the contract. The vendee can defend, and protect his possession, by showing, a performance on his part, or that he is not in default. The plaintiff, it is true, did not have the title, but he was in a position to acquire it. When the plaintiff failed to make the deed, which he- had undertaken, absolutely, and without any conditions, to do, he thereby put him
The judgment of the circuit court is, therefore, affirmed.