Downer v. Richardson , 9 Vt. 377 ( 1837 )

The opinion of the court, was delivered by

Redfield, J.

The only question to be determined in this case is, whether the defendant is estopped from disputing plaintiff’s title, by notice of the contract with Thomas B. Downer. We think that the doctrine of estoppel does not properly apply to this case, as between these parties.

It is first to be remembered, that Thomas B. Downer purchased his right of the acknowledged tenant of Seymour. He becomes, of course, the tenant of Seymour. He sold to Gallup all his right, i. e. the right of becoming Seymour’s tenant, or quasi tenant, with the right of purchasing the title at its original price. He did not proiess to retain any lien upon the land, and, from the -very nature of the. case, he could not retain any such lien or mortgage. The land was not his. He did not profess to sell it. He had no right to bargain it. He did not bind himself to procure Seymour’s title, or that it could be procured at any given price, or indeed, at. any price. Of all these Gallup was to run the hazard. Downer offered to negocíate with Seymour, and Gallup consented, but it does not appear that this formed any part of the principal contract. If Downer obtained the title of Seymour, he had no lien upon the deed for his own security, but was bound to convey immediately. Under these circumstances, it would be in vain to pretend that Gallup was not at liberty to purchase the title of Seymour. It was just what, of all things, he would have been expected to do. The authority, which he had conferred upon Downer, to negocíate with Seymour, was not obligatory upon Downer, and, of course, was revocable by Gallup, at any moment. By the contract, Gallup became Seymour’s tenant, and Downer ceased to be such. Seymour might sell to Gallup or his grantee, but could not, with propriety, sell to any other.

It is to be observed too, that, in all contracts for the sale of real estate, or any interest therein, the vendor cannot put the vendee out of possession of the land, unless the vendee fails to perform the stipulations on his part, while the vendor is still ready and willing to perform on his part. Thus it is evident, that, although this relation has been denominated a species of tenancy, it -has very little analogy to the relation of landlord and tenant, until the vendee fails, on his part, to perform the terms of the contract, when the- vendor’s right arises, and he may disregard the entire contract of sale, and the vendee becomes a tenant at will.

In the present case, the vendor, Thomas B. Downer, had, without the consent of Gallup or his grantor, conveyed to plaintiff all his "right in the land, if any he ever had, and thus had, in one sense, put it out of his power to perform the contract on his part, if it is to be treated as a contract to convey an interest in land. This latter view was relied upon by one of my brethren, as confirming the general doctrine of the case. And if it needed confirmation, this would seem to be conclusive.

Judgment affirmed.