2 Iowa 117 | Iowa | 1855
Lead Opinion
This is not a case of specific performance. The bill prays that the agreement may be declared to be a mortgage, and that Usher may be permitted to redeem, and upon paying the money, may receive the title. There are two difficulties in the way of considering the transaction as a mortgage. First. There was no debt in-fact existing between U. and L. which we believe to be necessary, in order to enable the court to view it in the light required. Glover v. Payor, 19 Wend. 518; Robinson v. Cropsey, 6 Page, 480; Holmes v. Grant, 8 Ib. 243; Brown v. Dewey, 2 Barb. 28. Secondly. The title did not pass from U. nor from any one, through his instrumentality or for his benefit. Without this, also, it is difficult to see how the
And again: it is expressly stipulated that if either party fails to perform all the covenants in the contract, it shall be forfeited. There cannot be any less meaning to this part of the agreement, than that if either party failed to perform as covenanted, his rights under the same should cease. One of the express covenants was, that of payment at the time named; and it is not the province of the court, to change the contract of parties; it must be as they made it. This is not a case to which can be applied the assumed rule, that time is. not of the essence of the contract. If this be a rule of law, or of courts of equity, it is one that has a very
But there are other facts. On the part of complainant, it is shown, that during this time, L. had said to a third person that he did not want the land, if he could get his money and interest. Such declarations do not seem to amount to anything which a court can lay hold of, unless they are brought into connection with some further contract, or arrangement between the parties. On the other side, it is shown, that in the spring of 1858, when one Hunting thought of buying the land, he said to Usher that he had heard that he (U.) had given up.all idea of redeeming the
Alanson and Abraham Livermore both testify, that about August, 1853, Usher came to the house of the said Alanson,' and saw the respondent, Martin L. there, and told him that “ he (U.) did not want the land ; there was not enough for him and his boys; they had been .out "West, and liked the country, and wanted to go out there; and if defendant could sell the place for enough to make him a present, if it was but a small one, he should be glad.” After this, in January, 1851, Usher makes a formal tender of the. money, and de-. mands a deed, which is declined. This is seven years after the money fell due, by the terms of the contract. Then, if Usher had had any title to the land, which he conveyed to Livermore, to which a right of redemption might attach; and if this were a contract opening to a question of performance ; and if the case were free from the question of an abandonment, it would be difficult to recognize any right remaining in Usher. And still more difficult is it, taking the foregoing facts into view, showing an unexcused delay, if not a voluntary neglect. See Stephenson v. Thompson, 13 Ill. 186; Perry v. McHenry, Ib. 227.
The judgment of the District Court is affirmed.
Concurrence Opinion
I concur in the conclusion, that the judgment of the court below should be affirmed. I do not understand, however, that the rule, that time is not treated by courts of equity, as of the essence of-the contract in actions for specific performance, is an assumed one, or of the limited application suggested in the above opinion. And therefore, in so much of the opinion as relates to that subject, I do not wish to be understood as concurring.