Hinman v. Bacon , 2 Conn. 147 ( 1817 )

Swií'Tj Cli. J.

1 am of opinion, that the plaintiff is not entitled to recover. It appears from the facts stated, that he has not performed his part of the contract, and that the non-performance by the defendant is owing to his conduct. Without attempting to agree on appraisers, he instantly, on tendering the money, nominated one on his part; the defendant, in reasonable time, appointed his appraiser ; to whom the plaintiff disagreed, and did nothing more to procure the appraisal of the land. The performance of the contract was defeated by the plaintiff, and he cannot be ent itled to reco ver.

It appears, that the money for which this action is brought, was paid in satisfaction of a note given by the plaintiff; to secure which land had been mortgaged. This note has been given up by the defendant ; and from the evidence, there can be no doubt it was received by the son with the consent and approbation of the father. The money, then, has been paid in satisfaction of a note, which has been given up. The plaintiff can have no right to recover it back. If he should, it would set up the note, and he would be liable to re-pay it.

It further appears, that the plaintiff has paid a debt for which land was mortgaged. By the payment of this debt, he is now entitled in equity to the land mortgaged to secure it. He has, then, only done what by law he was obliged to do, and can now claim all he has aright to in equity. There is, of course, no reason for the maintenance of this action. The plaintiff ought to become nonsuit, *

Edmo\d, J.

By the terms of the contract, the plaintiff acquired a right to pay the sum stipulated, and deliver the deed, within the time limited, or not, as he might judge most expedient. There was no obligation, on his part, to comply with the terms. On the last day of the time, and near the close of it, on which he had a right to make his election, he tendered the money and deed, and named his appraiser. If, by the terms of the contract, the acts to be done by the parties respectively, were to be concurrent, the plaintiff ought to have made his election in season to have had the appraisal, and the business completed, on .the last day, within which he had a right to avail himself of the privilege secured to him by the contract. But if, by the terms, tlic money was j¡¶-0 |)c advanced, the defendant ought to have had a reasonable time, after the payment, to comply on his part. From the. evidence, as stated, it appears, that there was not time, after the tender and receipt of the money, to name and obtain an appraiser on the. part of ihc defendant, and finish the business on that day. On the next, the defendant gave, notice of his choice, and readiness to proceed on the business, but if not prevenied, was at least, excused, by a peremptory refusal, on lite part of the plaintiff, to suffer the appraiser chosen by the defendant to go on the land. The defendant’s readiness to comply further appears from his delivering the note, on request, to the plaintiff’s son.

On the ground, therefore, that from the evidence it appears, that the failure of an entire execution of the contract, was owing, not to the refusal of the defendant, after receipt of the money, to have the contract, on his part, carried iuto full effect, as soon as it could reasonably be done, but to the neglect or refusal, on the part of the plaintiff, to proceed further ; he ought not to be permitted to avail himself of a non-execution caused by bis own act, rescind the coni ract, and subject the defendant to a suit for the repayment of money, voluntarily paid, and received in pursuance of the terms stipulated in the contract. And for this reason, I should advise, that judgment be rendered for the defendant.

Another objection to the plaintiff's right of recovery has been urged, which, however, 1 do not consider as conclusive, it is said, that the contract being iu part executed, should it be rescinded, and the money recovered back, it would not place the. parties in statu quo ; because the money due by the. note, had been secured by a mortgage of the land referred to in the contract, and other lands, and by a decree of foreclosure, the plaintiff had lost his equity to redeem the land in question, whereby the title vested in Masters, and by him bad been transferred, together with the nole, to the defendant ; consequently, the receipt of the money due by the note had opened the decree of foreclosure, ami if t fio money should be recovered back in this action, the plaintiff would gain an advantage by having the decree opened, and the defendant exposed to have his title derived from Masters, defeated, which, if the contract in favour of the plaintiff had not be1'» made, would have been secure» and equally so, if the money had not been paid and received, and will be so still» if the f'ontract is finally carried into complete effect,

In considering this objection, it is not necessary to decide, whether, in this st ate, an action on a nóte secured by mortgage can be maintained, after a decree of foreclosure, and the time allowed for redemption in the decree is elapsedi^(a) For whether recovered in an action at law, or voluntarily paid and received after a decree of foreclosure has taken effect, the receipt of the money does not vacate the decree. That remains in force, as to its legal effect $ it only opens the door for an application to a court of chancery, founded on a new equity, arising from the payment and receipt of the money, after the foreclosure, to have the decree opened, or set aside, and the mortgagor permitted to redeem. If this beso, all that the plaintiff could gain by payment of the money, would he a right to apply in chancery. If he rescinds the contract, and recovers the money back, he rescinds it in toto. as well in respect: to its equitable, as its legal, effects j and destroys the only equitable ground of application to chancery j and, as to any relief against the foreclosure, will stand on the same footing he would have done, had the contract never been made, and no step taken towards its fulfilment. On the other hand, if the contract is rescinded, and the money returned, the defendant will have the same security as to title, that he had previous to the contract for the plaintiff’s benefit; or that he would have had, provided the plaintiff had not tendered the money by the day.

The objection, therefore, that the contract, after what has taken place, cannot be rescinded, so as to leave the parties in statu quo as to their respective rights, docs not appear to me to be well founded, or furnish a sufficient reason, of itself, against the plaintiff’s recovery in this action.

The ci rcumstance of the note being put into the hands of the plaintiff’s son, and by him received and held, without any authority, in fact, from the plaintiff, was not, though it might have been so intended by the defendant, a delivery to. and receipt of it by, the plaintiff, in pursuance of the contract. Should the defendant, therefore, be put to any inconvenience on that account, it is not to be attributed to the plaintiff. It was the duty of the defendant to have delivered it, after a receipt of the money, and tender of the deed, in a reasonable time, to the plaintiff.

GonoAno, ,T.

The plaintiff claims, that he has right to recover in this action, on the ground that he has done all in hi.s power to fulfil the contract, and that it failed through the mere default of (lie defendant, llut the facts stated for out* opinion, do not justify this claim.

Ry the terms of the contraed, the plaintiff was to pay the money within six months from its date. On the last day oí the time limited, he paid the money at sunset, and tendered his deed, and offered, and named an appraiser of the land. The objection, which the defendant then made to the man offered as an appraiser, might not have been well founded; but he had right to take reasonable time, either to agree on appraisers, (which, by the way, the plaintiff never offered to do,) or to consult his counsel as to proper men for appraisers, or to do whatever else he pleased. The plaintiff himself having waited until the last moment of the time limited for paying the money before lie did any thing on the subject, it surely was not unreasonable for the defendant to claim, that the selection of appraisers should be delayed until the next day, especially its it was so late, that the business could not, in its nature, he done that night. Next day, the defendant did offer an appraiser, to whom the plaintiff objected, and declared, that he should not go upon the land. By the terms of the contract, if the parties could not agree on appraisers, (and the plaintiff never offered to do so) each party had right, to choose one appraiser, without consulting the wishes of the other party, and they were to agree on a third. The defendant then, next day, within reasonable time, waived his objection to the plaintiff's appraiser, and named one himself. The plaintiff refused to proceed. He, therefore, cannot recover on this ground.

But the money which the plaintiff paid, was paid to cancel his own note, to release and disencumber his own land, other lands than those foreclosed, and whichpould not be «lone without payment of this very money. What effect that payment may have upon the land foreclosed, it is not necessary at all to decide. If the plaintiff has lost that land, he has done it by hia own fault and neglect.

From the evidence. als->, it appears, that the plaintiff, by his son, lias taken up, and now holds his note. If this action •should be sustained, the parties would not he left in statu quo. The plaintiff has paid and taken up his own note, and can have no remedy to recover back the money.

Thcmbuíx, Smith, Ubaikard, Riinwcr and IIosmer. •Is. concurred in the opinion given by Ch. J. Swift. Gorin, J. gave no opinion, having been of counsel in the cause.

J udgment to he given for defendant.

(a) u) 1 202.