Russell v. Copeland , 30 Me. 332 ( 1849 )

Tenney, J.

— By the terms of the condition in the bond, the defendant was obliged, upon the payment to him, first to be made, if within the time stipulated in the note, to convey the land described in the bond. If he had held the note at the time of the payment, he would have been entitled to a reasonable time after demand in which to have made and executed the deed. As he did not receive the money himself, he had the same opportunity to prepare and execute the deed' after the demand, and after he had obtained knowledge, reasonably satisfactory, that the payment had been made. He should have knowledge, that the condition, which the plaintiff was to fulfil to entitle him to a deed, had been performed, before he was required to have it prepared. But the law does not require, that the note" taken up, should have been presented to him as the evidence, that it had been paid. His knowledge of the payment, could be shown by any competent proof, like any other fact.

The evidence, that the plaintiff demanded the deed of the defendant was, that he called upon the defendant in the highway, first having been to his house for the purpose, and expressed his wish, that the conveyance should be made, several months after the payment of the note; that the defendant replied he would attend to it in a few days ; and upon being urged to appoint a time, when it should be done, he said that he would attend to it soon, and that the defendant was safe by his bond. Also when the defendant tendered a deed to the plaintiff after the commencement of this action, the latter stated, he had called upon him several times for the deed, but was unable to obtain it, which the former did not gainsay. This evidence, if true, was sufficient to authorize the jury to find for the plaintiff upon this point.

The defendant cannot avail himself of the omission on the part of the plaintiff, to discharge the taxes assesssed upon the land; the condition in the bond required no such duty of him, before lie was entitled to receive a deed.

Was it necessary, that the plaintiff should have tendered a mortgage deed of the land at the time of the demand upon the defendant, for a conveyance ? The title of the land had never passed from the defendant, and without a deed from him, the mortgage deed could not have been of the least benefit. A ceremony that is useless, the law does not require. All that was necessary on the part of the plaintiff, was a readiness to conform to his part of the contract. The defendant was not bound to make delivery of the deed, without receiving the mortgage at the same time, for the security of the residue of the purchase money, but he was required after the plaintiff had made payment of the money, in fulfilment of his agreement, and a readiness to do every thing else incumbent on him was manifested, to have done all which was necessary to make the conveyance, short of the actual delivery of the deed, before he could exact the security contemplated. Smith & al. v. Jones, 3 Fairf. 332.

The tender of the deed after the commencement of this action, was subsequent to the breach of the bond, and resort to legal means for indemnity according to the evidence, and could have no tendency to defeat a recovery, if the plaintiff was "otherwise entitled to maintain the suit.

The penal sum in the bond, is eight hundred dollars, and the consideration therefor was the plaintiff’s notes for the same sum, drawing interest from their dates. The case shows that no other evidence was adduced on the subject of damages. The notes, excepting the first, are unpaid and in the defendant’s hands. No offer has been made by the defendant to cancel the unpaid notes, or surrender them to the plaintiff. The loss, which the plaintiff has sustained, by the failure to make and deliver the deed by the defendant, is the value of the land at the time, when the conveyance should have been made, and interest thereon. The value of the land at the time of the contract was fixed by the parties, and the case exhibits nothing tending to show that the value has since changed. Hill v. Hobart & al. 16 Maine, 164. The jury were allowed by the instructions to add to the penalty, the interest as damages. It does not appear from what time the jury were instructed that the computation of interest should commence, nor does it appear from the case, what was the amount of the verdict. ' It cannot be assumed, therefore, that interest was allowed from an earlier time, than was proper.

Exceptions overruled.