White v. Yaw

7 Vt. 357 | Vt. | 1835

The opinion of the court was delivered by

Williams, Chancellor.

— It appears in this case, that in Sep-* tember, 1827, the orator made a contract with John Noyes, to purchase a certain tract of land, for which the orator was to pay $210; — that he paid $34, and the defendant, Yaw, paid the balance (being $176) for the orator, who thereupon gave Yaw two notes of $88 each, payable in one and two years; — that Noyes executed a deed to Yaw, and Yaw executed a bond to the orator, conditioned to deed to him, upon his paying the notes aforesaid;— that the orator went into possession — made improvements and bet-terraents to the value of $500; — that Yaw, on the 1st of June,. 1830, commenced an action of ejectment, recovered judgment, and took possession by virtue of a writ of seisin; — that the other defendant, Gillet, in consequence of some agreement with Yaw, went into possession; — that Yaw still holds the notes, which the orator' is willing to pay, after deducting rents and profits ; and praying that the defendants may be decreed to deed the land aforesaid to' the orator, on receiving the amount due.

To this bill there is a general demurrer. As the orator never had a legal title in the land, he cannot be considered as a mortgagor' entitled to redeem. The equitable interest which he has in the land, arises from his paying the sum of thirty-four dollars, from the bond of defendant, and his being put into' possession/ He could r c . , . ... have secured a legal title, by performing the' condition, not as uf case of a mortgagor, but by Compelling defendant to a specific performance. He' had no remedy at law on the land, without a strict! performance at the day. In consequence of his failure,- he forfeited his claim under the bond. But equity, in a proper Case, can relieve against a forfeiture, particularly where a compensation' c'an be made, and it can be' done with safety to-the other party, and thiseven where time is made of the essence of the contract,- and there' rs a default at the day. If there is a reasonable and just excuse, - or the delay has been acquiesced in by t-he other party, equity may relieve. But it will not and ought not to' interfere, where no at-" tempt is made' by the party to perform his contract,- and no reasonable excuse is offered for such neglect. When the party who is to' perform a’ condition, wholly neglects to perform the same-pays no' attention to the stipulations on- his part, and drives the other' party-to enforce the forfeiture,- he can have but little claim to the inter-" ference of a court of equity. lie ought' not to be permitted to lie' by, and see whether it will be most for his advantage to fulfil or neglect to fulfil- his contract,- and ask relief from the consequences-' of his neglect, when he sees it most for his advantage to have the' contract executed. The cases on this subject are collected and" commented upon by Chancellor Kent, in the case read' from John-' son’s Chancery Reports'. In this case, the orator asks to be 'relieved from a forfeiture, occasioned by his neglect to perform the con-' ditions on his part, inserted in the' bond of the defendant, Yaw.— If there was any reasonable excuse for not- performing them, — if he ’ was prevented by inevitable accident, or if there a'i'e any other con-' siderations which, according to the principles-adopted'in-a-court of chancery, entitle him to this relief, they should have been'stated in' the bill. Nothing is'presented as an excuse for his neglect y but on the contrary,-it appears to have been a case of gross negligence on'his part. He enters into possession — pays but $34, but about" one-sixth of the purchase money — fails to pay the first note in 1828 — the second, in 1829 — compels the defendant,-Yaw, to commence an action of ejectment, and take possession ; and after a' lapse'of six-years,- now seeks to compel the defendant to account! for the rents and profits of the land, and convey the same to him,when- he shall hereafter p'ay tbé'sütn- due. There are no equitable' considerations set- forth in this bill, to éntitíe the orator to thisrelief. It is however urged, that there are reasons why this has been delayed, and why the orator should be entitled to this relief, which can be shown in evidence. We can only look to the bill itself: If there are reasons of this kind, — if there are circumstances to show this court why the orator should have the relief asked for — be restored to the possession of the land, and have a conveyance decreed to him, after this lapse of time, they should be stated in the bill. But a party cannot exhibit a bill in court stating no equity, and rely on supplying this want of equity, by his proof.

It is further urged in this case, that the defendant retains his notes; but it is not stated that he holds them against the will of the orator, or that the orator has ever applied for them, or that the defendant has taken any steps, or is about to take any steps to enforce a collection of them ; and it may be questioned whether the defendant can pursue these notes, having so far taken the forfeiture as to sue for, and recover the land. If the condition of the bond had been to convey, on payment of the money, without taking any notes, the effect would have been the same as between these parties. But if the defendant can, and ever should attempt to enforce the collection of these notes, or treat them as evidence of, or security for a debt due to him from the orator, it may be considered as waiving the performance, on the part of the orator, of the condition to have been performed by him, and let him in to his equitable claim on the land, and in fact to the relief which he now asks for. But there is nothing stated in this bill, either as an excuse for not paying the money upon the notes, when they became due, or before the recovery in ejectment, and for suffering this length of time to elapse before taking any measures to pay the sum due to the defendant ; and it would be both unjust and inequitable, when no other circumstances are shown, to treat the defendant, who was in a measure compelled to sue for, and recover the land in ejectment, as a bailiff and receiver of the rents and profits to account to the orator.

The demurrer must be allowed, and the bill dismissed with cost.