30 Ill. 328 | Ill. | 1863
We think the court erred in sustaining the demurrer to the defendant’s special plea. By the instrument on which the action is brought, the plaintiff agreed to convey to the defendant a particular title to the land described, that is to say, the patent, and it was for this title to the land the defendant agreed to pay fifteen hundred dollars. And now it is admitted by the demurrer, that the plaintiff never had such title, and is unable to convey to the defendant such a title. Had the plaintiff brought his action for the first two installments before the time had arrived when the plaintiffs agreed to convey, it may be that the want of title would not have been a sufficient answer, for he might claim the whole time until the contract matured to acquire such title. Harrington v. Higgins, 17 Wend. 376. But the case is different where the party delays his action until the last payment is due, when the obligations under the contract become mutual and dependent, .•and the acts to be done in its execution are simultaneous. Then the party who insists upon the performance by the other party, must show performance on his own part, while he who-desires to rescind the contract, need only show non-performance, .or an inability to perform by the other party. Doyle v. Teas, 4 Scam. 265. Indeed, this inability to perform, is.a.good excuse on the part of the purchaser for not tendering ¡the last payment, for the law will not require the performance of a useless act, and would be sufficient to entitle him to re-coven the money back if he had paid the first installments. Sir Anthony Mayne's Case, 5 Coke, 21. There can be no difference in.principle, whether the party never had the title, or having had it, has parted with it. In either ease, it might be competent.for him to show that he still owned it in equity, and could.control it for the benefit of the purchaser, so that he could in fact perform his covenant. But here it is admitted, that-.the plaintiff never had the title which he professed to sell and agreed to"'convey, and this was, at least, prima facie a breach of his covenant the moment the time arrived when he might be called upon to perform it, and this authorized the purchaser to renounce it altogether, and. treat it as if it had never existed.
The judgment is reversed, and the cause remanded.
Judgment reversed,.
