50 Neb. 878 | Neb. | 1897
This action was begun by Hall against Eugene P. Seaver, George N. Hicks, James M. Swetnam, George W. Loomis, Amelia Burroughs, and Ella E. Latson to recover moneys paid to the defendants under a contract for the purchase of land. From a judgment for the plaintiff
On June 8,1887, Hall entered into a contract with the defendants whereby defendants agreed to sell plaintiff lot 7, block 4, West Lawn Addition, to which the defendant then had a valid fee-simple title. The price was $425. The time for payment was extended, but final payment made June 14,1893, and a deed demanded, which defendants were unable to make, because the defendant Seaver “had, through inadvertence and mistake, conveyed the same to one Ames, and so had put it beyond his power to convey the same to plaintiff, and defendants at that time had no title thereto.” April 27, 1888, the defendants, who prior thereto had owned in common the tract of land known as West Lawn, including the lot in question, divided their respective holdings, lot 7, block 4, falling to the defendant Seaver. The other defendants executed to him a quitclaim deed and assigned to him their interest in the contract with plaintiff. All payments made thereafter were made to Seaver, “as they had been before that time,” but plaintiff had no notice until he had fully completed his payments that the title did not remain in the defendants, as it was when the contract was made. When final payment was made Seaver promised to deliver a warranty deed, “but prior to that time the said Seaver had, as hereinbefore stated, through inadvertence and mistake, but without any intention whatever to commit any fraud upon plaintiff, conveyed (with forty-nine other lots) the said lot 7, block -4, West Lawn, to one George W. Ames, and learned such mistake on said June 14, 1893, and immediately upon ascertaining such fact entered upon negotiations with said Ames to procure a reconveyance of said lot from Ames to said Seaver, in
The first question pi’esented relates to the measure of damages. It is contended that if the case be viewed as an action for money had and received, the judgment should have been against Seaver alone for moneys paic] after the partition among the defendants, and, viewed' as an action for damages for breach of contract, the measure would be the value of the lot at the time conveyance should have been made, and not the purchase price. There are no forms of action under the Code except where specially provided. The question is, does the petition state any cause of action, and if so, one calling for the relief’ granted? We do not think that the partition of the property among the defendants released any of them from liability to Hall. The contract was with all the defendants, and while they might by agreement among themselves partite the property and change their mutual rights and obligations, they could not by such action affect their obligations to Hall or discharge any of them from any of such obligations. While as among the defendants Seaver became entitled to receive the purchase money to his own use, Hall could still hold them all responsible for the performance of their contract and look to all for damages resulting from its breach, no matter
The defendants next invoke the doctrine that where time is not of the essence of the contract, and the vendor is not able to make a good title at the time the contract ought to be performed, nevertheless a court of equity will afford him relief if he subsequently perfect his title and tender a good conveyance before decree. The general principle has been several times recognized by this court. Filley v. Duncan, 1 Neb., 134; King v. Gsantner, 23 Neb., 797.) This proposition is met in the present case by substantially two arguments. The first is that this is an action by the vendee after rescission, and not a suit for specific performance; the second, that specific performance will not be decreed unless the party seeking it has been ready, prompt, and eager in the performance of his part. As to the first argument, it is- sufficient to say that the Code recognizes no distinction between proceedings at law and in equity. The defendant may interpose an equitable defense. In this case the defendants set up the facts in their answer and prayed that the plaintiff
It is urged that the contract was for a warranty deed from all the defendants; that the other defendants conveyed to Seaver by deed of quitclaim; and that only Seaver’s warranty was tendered. The bill of exceptions discloses that on the 13th of June, 1894, the defendants moved to reopen the case and for leave to introduce additional testimony. Such leave was granted and the defendants tendered a warranty deed to Seaver from the other defendants, duly recorded. A general objection to this deed as incompetent, immaterial, and irrelevánt was sustained. It is asserted that this tendér was not made until after the court had announced its findings. The transcript shows that the findings were made June 26,
There is nothing to show that there had been any change in the situation of the parties rendering it unjust to Hall to require him to accept performance, except what can be corrected by allowing him the rental value of the land pending the delay, and awarding costs against the defendants. This, we think, should be the course taken. The judgment of the district court is reversed and the cause is remanded for further proceedings in accordance with this opinion.
Reversed and remanded.