Harris v. Bolton , 8 Miss. 167 ( 1843 )

. Mr. Justice Clayton

delivered the opinion- of the court.

This was a bill filed by the complainants to enjoin the, collection of a note-given by them for the purchase of'a tract of land from the defendants as agents of the New York and Mississippi Land Company. It states the purchase, and alleges that the defendants covenanted and agreed, upon the payment of the purchase money, to execute good and .sufficient conveyances in fee simple for the land.

The note was sued on, and judgment obtained upon it. A deed was executed and tendered to the complainants; but they refused to receive it., because it did not show the aúthority of the agents, and because of some other alleged defects. Neither the original agreement, nor the deed which was tendered, nor any other muniment of title accompanies the bill. There is no allegation of fraud, and a positive objection made to the .rescission of the contract, but a prayer that the defendants be enjoined from the collection of the money, until they remove the clouds resting upon the title. An injunction was granted, which was afterwards dissolved upon motion without answer, and an appeal taken from the order of dissolution.

Taking the covenants in this case to be dependent, which is the strongest point of yiewin which they can' be regarded for the complainants, still this bill cannot be sustained. In the case of dependent covenants, if the proceeding is on the part of the vendee, he must tender the purchase' money -and demand a deed; if the vendor cannot comply, he will be in default, and the vendee entitled to relief. The party who comes into court must show that he has done all that was to be performed on his part, or must at least tender performance, or he cannot succeed. Bank of Columbia v. Hagner, 1 Peters, 465. As in this case the bill does not allege that the money had been tendered, and a conveyance demanded, the defendants have not been put in default, and the injunction cannot be retained. We do.not deem it important to determine whether the covenants are dependent or independent, because in this case the result would be the same.

Even in Virginia, where they have carried the doctrine of equitable relief to the purchaser much farther, than in England or elsewhere, it is held that the vendee cannot require the vendor to deduce his title; he must show and prove the defects, or he is entitled to no relief. Ralston v. Miller, 3 Rand. This was not done in this instance.

The dissolution of the injunction was proper, and the order to that effect affirmed.