Carpenter v. Thornburn , 76 Ark. 578 ( 1905 )

Riddick, J.,

(after stating the facts.) This is an action to recover the amount due on a note given for rent of land. The defendant admits the execution of the note, and states that,', though it purports to be for rent, it was in fact executed for a part of the purchase price of the land, and that he is ready now, .and has always been ready and willing, to pay it if plaintiff will ■execute a deed to the land. He contends that, as equity abhors. forfeitures, he has still the right to pay the note and the remainder ■of the price and take the land. The law on this point, so far as :it applies to this case, is very clearly stated by Prof. Pomeroy .as follows: “It is well settled that when the parties have so .stipulated as to make the time of payment of the essence of the •contract, within the view of equity as well as of the law, a court ■of equity can not relieve a vendee who has made default. With ■respect to this rule there is no doubt; the only difficulty is in -determining when time has thus been made essential. It is also -equally certain that, when the contract is made to depend upon a •condition precedent, — in other words, when no right shall vest until certain acts have been done, as, for example, until the vendee 'has paid certain sums at certain specified times, — then also a •court of equity will not relieve the vendee against the forfeiture ■incurred by a breach of such condition precedent.” 1 Pom. lEquity, § 455; Quertermous v. Hatfield, 54 Ark. 16.

Now, in this contract the parties expressly stipulated that time was of the essence of the contract. The right of the defendant to purchase the land depended under the contract upon the prompt payment of the five rent notes as they fell due. Until he had paid those notes, he had under his contract no right to purchase. If he had paid those notes promptly, the last of which was due on the 1st of November, 1901, he had under the contract the option to purchase the land at any time between that date and the first of January following. That is to say, if he had paid the rent notes, he would then have had two months in which to exercise his option to purchase. But he did not pay the last note. His excuse for this failure is that the defendant failed to tender him a deed. Now, an examination of the contract will show that plaintiff was not required to execute the deed to defendant until all the rent notes and the further sum of eight dollars had been paid. The failure of the defendant to tender a deed was no legal excuse for the failure to pay the note, for the payment of all the rent notes was a condition precedent upon which the right of purchase depended. The pleadings show that defendant made an offer to pay this note in his answer, but that was long after the maturity of the note, and after the time when the option to purchase would have expired, even had the note been paid. The contract may be a harsh one, but it contravenes no rule of public policy. The parties made it, and the courts cannot alter it. Cheney v. Libby, 134 U. S. 68.

On the whole case, we are of the opinion thát the judgment of the chancellor is right, and it is therefore affirmed.