171 N.E. 94 | Ohio | 1930
May a vendor, upon default being made by the vendee of a land contract, bring an action at law upon the contract for the recovery of the balance of the full amount agreed in such contract to be paid by the vendee, and recover a personal judgment against the vendee for such balance, without alleging and proving tender of a proper deed of conveyance to the vendee?
The plaintiff in error urges that the agreement to pay the purchase price constituted an express promise to pay a definite sum of money at a fixed time, and that since the vendee failed to pay, an action lies, without tender of the deed, against the vendee to recover the amount of money due and unpaid, according to the express terms of the contract.
The contract contains the usual acceleration clause, so that the full amount is now due. The vendee has not taken possession, and hence the plaintiff in error claims that the contract is executory, and the promise of the purchaser is independent of any agreement to convey.
The plaintiff in error cites no decisions from any courts of last resort in support of its contention. On the other hand, it is the general rule that where a conveyance is to be made on payment, and payment is to be made in installments, an action for the purchase price, or for a sum which includes the last installment, should show the tender of a deed. The decisions upon this point are gathered together in 35 A. L. R., 115, which cites cases from some fifteen courts of last resort supporting this doctrine.
To the same effect is Prichard v. Mulhall,
"1. Assuming that upon breach of an executory contract for the sale of land the vendor may bring an action at law to recover the purchase price, it can only be maintained on a tender and production in court of a proper deed of conveyance for the use of the vendee.
"2. Upon the breach by a vendee of an executory contract for the sale of land, the vendor's remedy is an action in specific performance or at law for damages, and an ordinary action for the recovery of the purchase price will not lie."
In Jones v. Tschetter (1923),
In Walsh v. Coghlan,
Dubois v. Andrews,
There is some conflict in the decisions upon the question whether the covenants are dependent or independent.Benjamin v. Savage,
Under the contract, when the final installment of purchase money has been paid, the vendor is to cause the land to be conveyed to the vendee by warranty deed. This makes the agreement to pay the purchase money dependent.
Hence it follows that the municipal court was correct in sustaining the demurrer to the petition.
Judgment of the Court of Appeals affirmed.
Judgment affirmed.
KINKADE, ROBINSON, JONES, MATTHIAS and DAY, JJ., concur.
*247MARSHALL, C.J., dissents.