127 Iowa 269 | Iowa | 1905
March 5, 1901, plaintiff entered into a contract for the sale of a part of the land in controversy to one Burgess. At that time he (Webb) did not have title to the property. He held a contract for the purchase of the land from one Reece, which provided for a conveyance from Reece to Webb on March 1, 1902. Reece held no title, but had a contract of purchase from one Aurner. The Reece-Aurner contract made time the essence of the contract, and provided for forfeiture on default of payment of the purchase price. The Webb-Burgess contract provided that Webb should furnish an abstract showing good and sufficient title vested in him (Webb) up to March 1, 1903, and that he' should pay the 1902 taxes. This contract also contained the following provisions:
And it is further stipulated that no assignment of the premises shall be valid, unless the same shall be endorsed hereon, or permanently attached hereto, and countersigned*271 by all parties (for which, purpose this contract must be sent to said parties of the first part by mail or otherwise) and that no agreements or conditions or relations between the said party of the second part and his assignees or any other’ person acquiring title or interest or through him shall preclude the said parties of the ’ first part from the right to convey the said premises to said party of the second part or his assigns on surrender of this agreement, and the payment of the unpaid portion of the purchase money which may be due to the said parties of the first part.
The contract further provided that the payment of the balance of the consideration, $5,860, should be made on the 1st day of March, 1903, and:
In case the party of the second part, his legal representatives or assigns shall pay the several sums' o'f money aforesaid punctually and at the several times above limited and shall strictly and literally perform all and-singular his agreements and stipulations aforesaid according to their true tenor and intent, then the,said parties of the first part, will make unto the said second party his heirs and assigns (upon the surrender of this contract) a deed for the said premises in fee simple, with the ordinary covenants of warranty.-
In May of the year 1902 Burgess, purchaser under the Webb contract, made an assignment’thereof to Jorgenson and Hall, which assignment read as follows:
Nor value received we hereby sell, assign and transfer and set over to E. E. Jorgensen and J. L. Hall of Pocahontas County and State of Iowa, this contract. It is expressly understood that in -consenting to this assignment we do not exempt the original purchaser from any of his liabilities from any of the contract, but to protect’the rights of the assignee provided he comply with its obligations, and under no circumstances whatever will any assignment of this contract be considered valid unless countersigned by party of the first part, for which purpose it must be sent within twenty days after such assignment.
In June, 1902, these assignees, Jorgenson and Hall, made a general blank assignment thereof. It was delivered,
It further appears that defendant, Hancher, made his contract for the land with Jorgenson and Hall, paid them a certain cash payment, and gave a note for the balance due them on the assignment of the contract. The cash payment made to plaintiff under the Burgess contract was from him (Burgess), and defendant’s rights and liabilities are bottomed on his assignment of the Burgess contract from Jor-genson and Hall. When defendant took this assignment, he supposed that Webb had the legal title to the land. Defendant never went into the possession of the property, and he made no claim upon the plaintiff for the $1,340 which he had paid to Jorgenson and Hall when he took the assignment of the contract from them. He expected to get title from them, as his' contract was with them, and failing in that, he proposed to assert his claims against them. When defendant, Hancher, made his tenders to Webb, he (Webb) demanded that Hancher let him have the money tendered, so that he could procure his deed from Beece, and that Beece might thereby be enabled to pay Aurner, and for the further purpose of aiding him in paying the amount he (Webb) owed the bank; but this Hancher would not consent to do. Webb finally obtained the money with which to settle his obligations and to release the deeds from the bank through a loan made by his father, which was consummated about sundown on the evening of March 2, 1903, after defendant had made his tender and demand for performance; but the money was not actually paid to the holders of the deeds and contracts
Our conclusion that plaintiff is not entitled to recover finds support in the following cases: Martin v. Roberts, 127 Iowa, 218; Luse v. Deitz, 46 Iowa, 205; Hawes v. Swanzey, 123 Iowa, 53; Ormsby v. Graham, 123 Iowa, 202; McGuire v. Blanchard, 107 Iowa, 490; Thurston v. Arnold, 43 Iowa, 43; University v. Polk, 87 Iowa, 50; Iowa Co. v. Mickel, 41 Iowa, 402; Henderson v. Beatty, 124 Iowa, 163:
The trial court was in error in rendering judgment for the plaintiff, and its decree must be, and it is, reversed.