Usher v. Livermore , 2 Iowa 117 ( 1855 )

Woodward, J.

This is not a case of specific performance. The bill prays that the agreement may be declared to be a mortgage, and that Usher may be permitted to redeem, and upon paying the money, may receive the title. There are two difficulties in the way of considering the transaction as a mortgage. First. There was no debt in-fact existing between U. and L. which we believe to be necessary, in order to enable the court to view it in the light required. Glover v. Payor, 19 Wend. 518; Robinson v. Cropsey, 6 Page, 480; Holmes v. Grant, 8 Ib. 243; Brown v. Dewey, 2 Barb. 28. Secondly. The title did not pass from U. nor from any one, through his instrumentality or for his benefit. Without this, also, it is difficult to see how the transaction can receive the character of a mortgage. The utmost that is pretended, in regard to anything like a title, or right existing in U., is that he had a right under the preemption laws. A pre-emption right being something which exists under the laws of the United States, this court has recognized it as the basis of a contract. Pierson v. David, 1 Iowa, 23. But this cannot receive consideration in the present case; for it does not appear that U. had such a right. Very likely he might have had it by taking the steps required, in addition to residence; but he does not appear to have done anything to put himself in a position to claim, that right. Again, if he ever had this right, it must have been lost in the four or five years’ possession of the land, without perfecting the inchoate right by purchase. And last,- the purchase does not appear to have been made under the pre-emption laws, in any degree or manner, but L. entered the land, in the usual’ way of purchase from the United States; so that he got nothing by or under any supposed pre-emption right in Usher. The case seems to be rather,a strong instance of a call on the court to malee contracts for the parties, or perhaps, to violate them. In any view which can be taken of it, at this period of the transaction, there is a difficulty arising from the want of mutuality. Livermore holds nothing to be enforced against Usher. To give the contract any vitality, after the time prescribed, at least, if not before, there should be a power of enforcing it against U. as well as against L. But it is entirely one sided.

And again: it is expressly stipulated that if either party fails to perform all the covenants in the contract, it shall be forfeited. There cannot be any less meaning to this part of the agreement, than that if either party failed to perform as covenanted, his rights under the same should cease. One of the express covenants was, that of payment at the time named; and it is not the province of the court, to change the contract of parties; it must be as they made it. This is not a case to which can be applied the assumed rule, that time is. not of the essence of the contract. If this be a rule of law, or of courts of equity, it is one that has a very limited meaning, and is to be taken carefully. It. means that time simply — tbat time merely, as such, is not. And even with this restriction, whenever this rule has been applied to the question of time alone, it has been where the lapse of time was small; where there has been merely a noncompliance at the day ; whilst, on the other hand, the cases are numerous, in which this rule has not been applied y or, in other words, which have not been held to come within .it. This rule has never been applied, it is believed, where the lapse of time has been long, and when there has been neglect. "What is a long time, in this connection, has not-been, and cannot well be, defined. This point amounts to this: that when the precise time has been omitted by accident, chance, or misfortune, and the party has shown himself ready and desirous to perform at the earliest day under the circumstances, the precise time shall not be held vital* But if the case shows dilatoriness, neglect, or want of care in performing, the party is not entitled to relief. And why should he be ? There can be found in equity, no principle which professes to serve the negligent. And then when the party is relieved, even on the ground above stated, it can be-only in a case when full compensation can be made, when both parties can be placed in as good a condition as before,, and when there has been no change of' circumstances. No law and no case, permits one to lay by and wait his own time and leisure, to determine whether he will perform or not, and then claim and enforce a performance, if things favor it, or throw up the contract, if he so chooses. See 1 Story’s Eq. Jur., § 771, and note on page 101, 102 ; Leading Cases in Eq. 26; Benedict v. Lynch, 1 Johns. Ch. 370; Hatch v. Cobb, 4 Ib. 559; Remmington v. Kelley, 6 and 7 Ohio, 447; Higby v. Whitaker, 8 Ib. 198; Williams v. Champion et al., 6 and 7 Ib. 78; S. C. in 6 Ham. 169; Voorhees v. De Meyer, 2 Barb. 37; Lloyd v. Collett, 4 Brown’s Ch. 469, Parker’s edition, note to this case; Sugden on Vendors, 5 ed. 324, 349, and in 6 Amer. Ed. 413, § 15; 10 Kinne’s Law Comp. 90; Garretson v. Van Loon, Iowa, Leg. Inq. Sept. 1851.

This is hardly a case to which these remarks apply, and yet the point is urged in it: And assuming the contract to be one to which such remarks would be fully applicable, let us look at the facts. The first and important fact is, that Usher did not pay at the time agreed upon. Now, what is shown to excuse him; to relieve him from the contract ? He does not pretend to have tried to pay until in the year 1848 (what precise time is not stated), somewhere from one to two years after his contract expired. It is difficult to find a principle of equity which should relieve him from the effect of this delay, when no pretense of a reason is offered for it. At that time, he went to pay the money to P. Smith, as agent or attorney of Livermore; but Smith had not the papers, and had no authority to give a receipt or a deed, and declined taking the money. It is to be remembered, that the respondent states that the money could have been paid to Smith, when it fell due, and it is proved that respondent remained in Dubuque a year or more after the making of the contract, when he returned to New York; and he says, that he then took the papers with him. From this time, 1848, down to January, 1854, the complainant’s argument seems to be, that Liver-more was not a resident of the state, and he did not know where to find him. He ascertained his address, however, as he supposed, and caused a letter to be written him once, in 1849 or 1850. This reason covers about six years from the attempt to pay the money to Smith, and seven or more from the maturity of the contract. Is it enough? "We do not think it is.

But there are other facts. On the part of complainant, it is shown, that during this time, L. had said to a third person that he did not want the land, if he could get his money and interest. Such declarations do not seem to amount to anything which a court can lay hold of, unless they are brought into connection with some further contract, or arrangement between the parties. On the other side, it is shown, that in the spring of 1858, when one Hunting thought of buying the land, he said to Usher that he had heard that he (U.) had given up.all idea of redeeming the place; to which. U. replied, that he had given up all hopes until lately; that there was a lawyer in Dubuque, who told him he could hold it; and that if Hunting did not want trouble, to let the place alone.

Alanson and Abraham Livermore both testify, that about August, 1853, Usher came to the house of the said Alanson,' and saw the respondent, Martin L. there, and told him that “ he (U.) did not want the land ; there was not enough for him and his boys; they had been .out "West, and liked the country, and wanted to go out there; and if defendant could sell the place for enough to make him a present, if it was but a small one, he should be glad.” After this, in January, 1851, Usher makes a formal tender of the. money, and de-. mands a deed, which is declined. This is seven years after the money fell due, by the terms of the contract. Then, if Usher had had any title to the land, which he conveyed to Livermore, to which a right of redemption might attach; and if this were a contract opening to a question of performance ; and if the case were free from the question of an abandonment, it would be difficult to recognize any right remaining in Usher. And still more difficult is it, taking the foregoing facts into view, showing an unexcused delay, if not a voluntary neglect. See Stephenson v. Thompson, 13 Ill. 186; Perry v. McHenry, Ib. 227.

The judgment of the District Court is affirmed.