4 Mich. 570 | Mich. | 1857
By the Court,
This is an appeal from the judgment of the Circuit Court of Berrien County, dismissing the bill of complaint filed
Robert Wallis lived on and occupied the land, till his death, on the 31st of December, 1852, and his widow is still in possession; and Charles G. Pidge died intestate in June, 1852. In August, 1851, the parties to the contract endorsed upon it and signed a stipulation to extend the payment to January 1st, 1852. In May, 1852,. Wallis desired a further extension, and Pidge declined to tell him then whether he would extend the time or not, saying that he was going West, and, if he should like it, he wanted to sell and go West. Neither Pidge, in his lifetime, nor his legal representatives, since his death, have ever tendered a deed and demanded payment on the contract, nor offered to re-enter, for breach of the contract, or to pay back the money paid by Wallis
Erom a careful investigation of the facts, and the law applicable to this case, I think the contract betweeu Robert Wallis and Charles G. Pidge is in force, and not rescinded or forfeited by lapse of time. It seems that Charles G. Pidge, in his lifetime, never desired to treat it as forfeited, but com tinued to receive payments upon it; and, by not tendering a deed and demanding the money, and by neglecting to re-enter for breach, and to pay back the money paid by Wallis, he chose rather to consider the contract in force; and Wallis, by continuing in possession, under the contract, still held himself liable to pay the contract price.
There is no force in the objection, that there is no mutuality in the contract, for the contract, by its terms, binds Wallis to pay $500 and interest, on the delivery of the deed; and, even if it did not, Wallis, by taking possession under the contract, would render himself liable to pay the purchase price. To regard this contract to have «been mutually dependent, and that -the delivery of the. deed and the payment of the money were intended to be simultaneous, is the most favorable view that can be taken of it in behalf of the defendants — that Pidge could not put Wallis in default, unless he tendered a deed, and demanded the money. Nor
I do not think that time was considered as of the essence of the contract, in its inception, or that it was considered or treated so by either of the parties to it, in their lifetime, or that it ought to be considered so in any construction to be put upon it by the Court; the time for the delivery of the deed being uncertain, in the first place — being “ on or before the 31st of August, 1849then in August, 1849, it was extended two years; then in the year 1852, in May, prior to the death of Pidge in June, Wallis asks for more time, and Pidge cannot tell whether he will give more time or not. Now, it seems very just and equitable, that after parties themselves have so dealt together, that Courts shpuld not allow one of the parties to obtain an advantage of the other, by suddenly considering time material, without proper notice of such an intention, and, when such an attempt is made, will look carefully to see that the party making the attempt is guilty of no laches on his part; and the Court will never allow it, after such dealings together, where it results in hardship to the party against whom it is attempted.
In More vs. Smedburg (8 Paige, 600), the Chancellor says, as a general rule, if the vendor receives payment of a part of the purchase money, after the time of payment fixed by the terms of the agreement has expired, or if the vendee continues in possession under the agreement, long after the time specified therein for giving the deed, a Court of Equity may consider a strict performance at the day as waived, and a party who has thus waived a literal performance of the terms of the agreement, will not afterwards be permitted to insist upon a forfeiture, without notice to the other party,
The Court say, in tbe latter case, where a time is fixed for the performance of a contract, it is at law considered to be the essence of the contract; but, unless the parties have expressly stipulated that it shall be so, it is otherwise considered in a Court of Equity; and its execution will be decreed, notwithstanding the time has elapsed for its performance, unless there has been culpable negligence or willful delay on the part of Mm who is seeking the aid of a Court of Equity. (2 Story Eq. Jur., § 776.) Such also is the doctrine of the English Courts. (Gibson vs. Patterson et al., 2 Atk., 12; Eaton vs. Lyon, 3 Ves. Jun., 695, note 2; Parkin vs. Therald, 11 Eng. L. and Eq., 279.)
It is claimed for the defendants, that the value of the property has .materially changed, and that, therefore, the Court will not decree a specific performance. Where the price agreed for in the original contract greatly differs from -the value, it is an ingredient which, associated with others, will contribute to prevent the interference of a Court of Equity. But the evidence does not show this land to have so much increased in value, as to change the view which might otherwise be taken of the case. To deny to the complainant a specific performance, would result in the hardship of taking from the first nine years of toil and hard labor in clearing and improving the land, and giving it to the defendants. Whereas, no inequity results from the defendants recovering the full purchase price of the land sold, with interest on the whole thereof, from the date of the agreement to sell.
The decree of the Circuit Court must be reversed, and the case referred to a Commissioner to take an account, etc.