110 Neb. 535 | Neb. | 1923
This is an action for specific performance of a contract to sell and convey real estate.
The plaintiffs, as executors and trustees under the will of Phillip Sullivan, deceased, filed their petition, which includes as exhibits a copy of the contract, and transcript of the mil and proceedings had in reference thereto in the county court of Wayne county. It appears thai Phillip Sullivan died October 5, 1919, seised of the land in controversy. The will was admitted to probate November 7, 1919. The contract was made October 20, 1920, and fixed March 1, 1921, as the date of final performance. It required an abstract showing good title in the estate of Phillip Sullivan and a conveyance to the purchaser in fee simple by good and sufficient deed.
On the date fixed, plaintiffs tendered a deed executed by them “as executors and trustees of the estate,” which defendants refused to accept, claiming that the same would not convey a good or merchantable title. Thereupon, March 12, 1921, plaintiffs filed their petition in the district court praying for specific performance. On the same date defendants filed an answer, admitting substantially all the allegations of the petition except that a sufficient conveyance had been tendered or could be given, and prayed for the denial of plaintiffs’ petition and the return to them of a cash payment previously made on the contract, of $6,464.
The case stood in this situation until September 24, 1921, when it was determined by the district, court upon the pleadings and a decree entered which finds, among other things, that plaintiffs, as trustees, had power to make the contract, and that upon the entering by the county court of a decree of final distribution in the estate distributing the estate remaining in the hands of the executors to plaintiffs, as trustees and sole devisees, plaintiffs can by their deed as such trustees convey full and perfect title, and that they are entitled to such final decree of distribution in the county court.
Upon this appeal it is contended by defendants, the appellants: (1) That the plaintiffs have no title as trustees until the administration has ¡been closed by a final decree assigning the property to them as devisees, and that, under the provisions of the will in relation to the property, the offices of executor and trustee are not coexistent; (2) that neither by the will nor otherwise in the probate proceedings has it been designated or determined whether the decedent had been married or left a surviving widow, and that the absence of some adequate determination of this matter rendered the title unmerchantable in its present condition; (3) that the trial court was unauthorized by its decree, of a materially later date than the contract day of performance, to allow the plaintiffs to thereafter perfect their title in the respects complained of, and then require the defendants to accept the same, the contract having specified that time should be an essential element.
The appellees answer: (1) That, because the contract contained the provisions that the cash payment due March 1 “is without interest until maturity and to draw interest at ten per cent, after maturity,” the subsequent clause making time of performance an essential element of the contract is thereby rendered nugatory; (2) that, because the will devised the land of the estate to trustees and directed it to be sold and converted by them into money or securities and distributed in such form, an equitable conversion took place and the title vested in the trustees; (3) that, the will having been duly probated, the debts paid, the time for filing claims expired and an order barring claims entered, equity will “look upon that as done which ought to be done” as to a
We may assume that plaintiffs had power to make the contract, and pass over the question as to whether it resided in them as executors or as trustees; also as to whether the will Avorked an equitable conversion of the property so far as the estate was concerned, for here the question is as to the title to be passed to the defendants and the sufficiency of the conveyance by which it is proposed to be done.
The sufficiency of the conveyance tendered to pass good title is the principal question in the case. We may assume that these plaintiffs took under the will as any. other devisees would take. The question remains whether, prior to the final decree of the county court in probate proceedings determining heirship and directing distribution, and -without any recitals or finding in the will, or elsewhere in the probate proceedings, as to the domestic condition of the testator, equity should require the acceptance of a conveyance by plaintiffs as trustees. Certainly their power or authority in that regard is no broader than would be that of the testator. We may assume that Phillip Sullivan in life was party to the contract and tendered his deed without covenant'or recital as to his domestic condition. It needs no argument to demonstrate that no prudent title examiner would accept it or pass it. True, such defects, usually, however, as to the deeds of some age, are sometimes cured by means of affidavits; but even that is not tendered here, and we take it that, due to the situation of this estate, something more tangible than an ex parte affidavit should be had. Nor can we consider the objection upon this ground as unimportant or technical. It is material and substantial. It is for the very purpose of providing against such contingencies that these things are required in probate proceedings, and the purchaser is entitled to have something upon which he can of right rely as a
As to the contention that we should consider that as done Avhich ought to be done, and so assume what sort of decree avíII be entered in the county court, such rule is sometimes applied to prevent palpable injustice, but we have not knoAvn of its being used in aid of a plaintiff who in equity demands specific performance and is himself bound by the rule that, to entitle him to make such demand, he must show that he can perform fully on his part, and that he has been assiduous in the performance of his OAvn contract obligations. We are impressed with the thought that neither this court nor the district court can authoritatively determine in advance what decree shall be entered in that matter in the county court. The county court is the court of original, exclusive and unimpaired jurisdiction in such matters, and may have before it different considerations than appear in this case.
It is also contended, principally upon the clause in the contract hereinbefore mentioned regarding interest after maturity upon the deferred payment, that the subsequent clause in the contract making time an essential element Avas waived; but it seems apparent from a reading of the provision that it Avas, by prescribing the highest laAvfui rate of interest, intended rather in the nature of a penalty against the payer to prevent his default, and does not indicate an intention to abrogate a subsequent clause deliberately inserted in the contract. To hold that such clause canceled the provisions of the subsequent one making time an essential element would be a strained construction It is the duty of the court, where possible, to give effect to all the provisions of the contract. Neither are Ave convinced that, over defendant’s objection, the trial
The judgment of the district court is reversed and the cause remanded, with directions to enter a decree in accordance herewith.
Reversed.