50 Miss. 133 | Miss. | 1874
delivered the opinion of the court:
B. E. Wilson (the appellant) agreed to purchase from H. E. Cox, several tracts of land containing in all about 1,800 acres, for the price of $2,500, divided into instalments of $500 each. Cox executed to Wilson a bond to convey, with general covenants of warranty, upon final payment of the purchase money. Two of these instalments amounting to $1,000 have been paid.
Wilson, the complainant, brought his bill in chancery, and alleges that Cox has title to only one section of land, and part of another— as to the larger part he has no title whatever, and therefore is unabie to comply with his contract. That he applied to Cox, either to rescind the contract and restore to him the money which he had paid; or to convey to him so much land as he had title to, making a proper apportionment of the price, offering on his part to perform if Cox would comply by paying the balance of the purchase money. This offer Cox rejected, insisting that the complainant should pay the residue of the price, and accept such title as he was able to convey.
Upon demurrer the bill was dismissed. We have not been furnished with an argument in support of the demurrer, and are therefore not advised of the grounds of the decision of the chancellor.
According to the case made in the bill, the defendant sold and agreed to convey much more land than he had title to, or had procured title to, at the time suit was brought. The complainant according to his allegations was in no default, but was willing to complete his payments if he, defendant, would make a title as covenanted to be made. If that could not be done, he was willing to rescind, or to accept performance, as far as defendant was able.
Manifestly, the complainant could claim a rescission of the contract if the vendor could not make a title to half of a large tract, which he had bargained to convey.
It might be, that the portion of land to which the vendor could not make title, was much more valuable, and constituted the chief inducement to the purchase.
The principle is, that in such circumstances the purchaser has an election, either to abandon the contract and to be repaid what he has advanced, or he may compel the vendor to convey to^ him such estate, or interest as he has, and make compensation for the residue. Mortlock v. Buller, 10 Ves., 315.
In Jackson v. Ligon, 3 Leigh, 161, of a tract of 686 acres, the vendor was unable to make title to 206 acres, which was separated from the other land by a public road, it was held that the purchaser might throw up the whole bargain. The same principle prevailed in McKean v. Reed, 6 Litt., 395; Buchanan v. Alwell, 8 Humph., 516
If the inability of the defendant be the cause of the nonfulfillment of the contract, the plaintiff would have the right to a per
On the case made in the bill the complainant is entitled to relief.
The decree sustaining the demurrer and dismissing the bill, is reversed. Judgment is rendered here overruling the demurrer,, and cause remanded with leave to defendants to answer in forty days from this date.
