27 Ind. 269 | Ind. | 1866
TMs was a suit by Samuel D. McDonald and George W. Bussell against Eleanor Souffrain and Catharine Souffrain, for tbe specific performance of a written contract,
It is averred in the complaint that said Eleanor and Cath- ■ arine were seized in fee of said lot, and that the plaintiffs entered into possession thereof under said agreement; that they furnished the materials and erected the fence across the south end of the lot, in accordance with said agreement, and, at the end of the first year, paid said defendants fifteen dollars, the first year’s rent; that on the 15th day of December, 1865, and before the expiration of said two years, they notified the defendants of their determination to purchase said lot, according to the terms of said agreement, and then paid to them twenty dollars, the rent for the second year, and at the same time tendered to said defendants the sum of two hundred and fifty dollars of said purchase money, and also three several promissory notes, executed by the plaintiffs, for two hundred and fifty dollars each, payable according to the terms of said agreement, together with a mortgage, executed by them and their wives, to said defendants, on said lot, to secure the payment of said notes, and thereupon demanded of the defendants a deed of conveyance for said lot; but the defendants refused to accept said, money, notes and mortgage, and also refused to execute such deed. The money, notes and mortgage were brought into court for the plaintiffs.
The defendants answered in four paragraphs, as follows:
1. That at the time of making said agreement, no consideration was given or paid by the plaintiffs to the defendants for the privilege of purchasing said lot, nor was there any mutuality in said contract, as said plaintiffs were not under any obligation to purchase the lot; and that before said money, notes and mortgage were tendered to them by the plaintiffs, defendants notified the plaintiffs that they withdrew the offer to sell, the lot contained in said agreement.
2. That there was no consideration for the privilege of purchasing the lot, and that on the 8th of December, 1865, said McDonald, for a valuable consideration, by a written
3. The same as the first, with the additional averment that the plaintiffs did not offer in writing to purchase said lot.
4. The same as the second, with the additional averments, that at the date of said ■ agreement the fence on the south end of the lot was torn down; that the plaintiffs were the keepers of a livery stable, and wanted the use of the lot to turn horses on occasionally, and proposed to make said fence and pay said fifteen dollars the first year, and twenty dollars the second year, all as rent for said lot; that the privilege of purchasing the lot was an after-thought of the plaintiffs just before the agreement was drawn, and was put into said agreement without any consideration whatever, the building- of the fence being a part of the consideration for the lease; that the fence was only fifty feet in length, and cost but little, and that at the date of said agreement the lot was only worth one thousand dollars, but had increased rapidly in value, and was worth, at the date of said tender, one thousand five hundred dollars.
The court sustained a demurrer to each paragraph of the answer, and, the defendants declining to answer further, rendered a final judgment for' the plaintiffs. To all of which rulings the defendants excepted, and appeal to this court.
The action of the court in sustaining the demurrers to the several paragraphs of the answer presents the only question in the case.
It is urged in argument by the counsel for the appellants, that the complaint is defective, and therefore that the cle
The next question presented is, was either of the answers sufficient to bar the action? The only new matter alleged in the answer requiring notice is, that McDonald, for a valuable consideration, assigned his interest in the agreement to Bussell; and that thereafter, and before they determined to purchase the lot, or tendered to the appellants the money, notes and mortgage, and while Bussell still held the agreement, under said assignment, the appellants notified them that the proposition, or offer to sell, was withdrawn. The assignment by McDonald of his interest in the agreement to Bussell could not affect the question. If they were entitled by the agreement to make the purchase, the appellants, at most, could only require their joint notes for the unpaid purchase money, secured by a mortgage on the lot, and it could make no difference to them that the deed should be made to Bussell alone. But the cancellation of the assignment, before the acceptance of the offer and the tender of performance, restored the parties to the same relation as before it was made.
It is contended by the appellants counsel, however, that the offer to sell, contained in the agreement, is distinct from the lease of the lot, and, until accepted by McDonald and Bussell, was without mutuality or consideration, and might be withdrawn at any time before notice of its acceptance, and therefore that the allegation in the answer that the ■ offer to sell was so- withdrawn, before the acceptance or tender of performance by McDonald and Bussell, constituted a good defense to the action. Numerous authorities are cited upon the point that a mere offer to sell may be withdrawn at any time before it is accepted. That such is the law cannot be controverted.. But the agreement undei consideration is not a mere naked -proposition to sell the lot, nor can it be regarded as separate and distinct from the lease of the lot and the consideration stated in the agreement. The stipulations, on the one side, to lease the lot for
The case of Stansbury v. Fringer, 11 Gill & Johns. (Md.) 149, seems to be precisely in point. There, Stansbury was the owner of a half section of land in Richland county, Ohio, and agreed that Fringer might enter upon said land, and enjoy the same for the term of twelve years, for the following consideration, viz., Fringer agreed to build a house on the land, and to pay the taxes thereon during said term, and Stansbury further agreed that should said Fringer think proper to purchase said land, at any time within the said term, and pay him therefor the sum of six hundred dollars, he would make to Fringer a good and sufficient deed for the land. Fringer went into possession of the land in 1828, built the house and paid the taxes thereon until 1836, when he determined to purchase the land for six hundred dollars, the price stipulated in the agreement, and tendered said sum to Stansbury and demanded a deed, which the latter refused to make. Fringer filed a bill for specific performance, which was decreed by the court. It was insisted in that case, as it is in this, that there was no mutuality or consideration for the promise to convey, and that it was not therefore such a contract as a court of equity would require to be specifically performed. Chambees, J., in delivering the opinion of the court, said: “"Where a contract consists of several distinct and separate stipulations on one side, and a legal consideration is stated on the other, it must be considered that the entire contract was in the contemplation of the parties in each particular stipulation, and formed one of the inducements
In D'Arras v. Keyser, 26 Penn. St. R. 249, Keyser, in 1849, leased the premises in dispute to D’Arras. The lease contained a clause that D’Arras or his wife should have the right and privilege of purchasing the premises for the sum of two thousand five hundred and seventy-five dollars, at any time within twelve months from the date of the agreement, and upon the payment of said sum, and all arrears of rent, Keyser covenanted to execute a deed for the premises. D'Arras occupied the premises and paid the rent under the lease until he died, and his wife then paid it for some time. After the expiration of the time limited by the agreement for the purchase, the widow of jyArras gave notice to Keyser that she was prepared to pay the money and desired to have the premises conveyed to her. Keyser refused to convey, claiming that the time limited for perfecting the purchase had expired. The court held that she was entitled to a conveyance. See, also, Douglass v. Whitmore, cited in 7 Vesey, jr., 437, and in 14 id., 596; Daniels v. Davison, 16 Vesey 249; Hilliard on Yendors, §§ 7, 8, 9, p. 265. Ye think the answer presents no defense to the complaint, and the demurrers were therefore correctly sustained.
The judgment is affirmed, with costs.