Hodges v. Moore , 102 Miss. 532 ( 1912 )

Smith, C. J.,

delivered the opinion of the court.

On June 28, 1910, appellee .purchased from Mr. Joe McCain certain land in Lauderdale county, Miss., agreeing to pay therefor the sum of four hundred dollars in nineteen installments, executing his promissory notes covering same. Thereupon McCain executed and delivered to him a bond for title, wdierein he covenanted to execute to defendant .a warranty deed to the property when all of these notes should he paid in full. This bond for title, which was signed by both parties thereto, contained the following clause: “Party of the second part hereby agrees that, if he fails to meet any payment within thirty days after same is due, all payments are then due and payable, and, unless paid, party of the second part forfeits all right, title, and interest in and to the aforesaid lots or parcels of ground.” These notes were afterwards assigned to, and are now the property of, appellant, who, default having been made in the payment thereof, instituted this suit in order to collect them, alleging that appellee had indicated to him that he would decline to accept a deed, should same be tendered to him, and tendering with his amended declaration a duly executed warranty deed conveying the property from McCain to appellee. Appellant introduced evidence showing that he was the owner of the notes, and that only the sum of twenty dollars had been paid thereon. This *evidence, on motion of appellee, was excluded, the jury peremptorily instructed to find for him, and there was a verdict and judgment accordingly.

' Appellee seems to seek to uphold the judgment rendered in the court below upon two grounds: First, that by virtue of the clause in the bond for title hereinbefore set out appellant’s only remedy is to take possession of the land, which appellee states he is perfactly willing for him to do; and, second, that, if mistaken as to this first ground, since this is an executory contract, no action for the purchase price of the land will lie, appellant’s only •remedy being a suit at law to recover whatever damages he has suffered on account of the breach thereof by appellee, or to enforce its specific performance in equity.

With reference to appellee’s contention, it will he sufficient to say that this contract contains no agreement, either express or implied, on the part' of the vendor, to release appellee from the payment of his notes upon the surrender of the land. It may he that appellant, as assignee of the notes, has the right to re-enter upon the land because of the failure of appellee to pay them, as. to which we express no opinion, for the reason that he is not attempting to exercise any such right.

In most states the rule seems to be, as contended by appellee, that where an executory contract of this character has been made, and all the installments of the purchase money are past due, the vendor’s only remedy,, when the purchaser declines to pay, is to recover at law whatever damages he has sustained by reason of the breach of the contract by the purchaser, or to obtain in equity a specific performance of the contract. An examination of the cases so holding will disclose that the reason for this rule is that the vendor will not be permitted to retain title to the land and at the same time recover the purchase price thereof.

It would seem, therefore, that if the vendor, or, as in this case, his assignee, tenders with his declaration a good and sufficient deed to the property, the reason for the rule has ceased, and consequently the rule should cease; for, in that event, should the purchaser be compelled to pay, he will receive the deed which the vendor obligated himself to deliver. It has been the uniform practice in this state to proceed at law to collect the purchase price upon breach of contracts of this character, as will be disclosed by an examination of the following-cases: Gibson v. Newman, 1 How. 341; Coleman v. Rowe, 5 How. 460, 37 Am. Dec. 164; Clopton v. Bolton, 23 Miss. 78; McMath v. Johnson, 41 Miss. 439; Bowen v. Bailey, 42 Miss. 405, 2 Am. Rep. 601.

The doubt which the court seems at timés to have entertained with reference to this matter simply related to whether or not it was necessary for the vendor, before instituting- suit, to put the purchaser in default by tendering, or showing a legal excuse for not tendering, to him a deed to the land agreed to be conveyed. This doubt was set at rest by the case of Robinson v. Harbour, 42 Miss. 795, 97 Am. Dec. 501, 2 Am. Rep. 671, wherein it was held that this must be done, overruling former cases holding otherwise.

In the case at bar no deed was tendered to appellee before suit was instituted, but it abundantly appears that he would not have accepted a deed and paid for the land, had one been tendered him; consequently, no formal tender of a deed was necessary, for the law never requires a man to do a vain and useless thing.

The motion of the appellee to exclude the evidence should therefore, have been overruled, and, consequently, the judgment of the court below is reversed, and the cause remanded.

Reversed cmd remanded.