Dye v. Montague , 10 Wis. 18 ( 1859 )

By the Court,

Cole J.

We see no good reason for setting aside the nonsuit in this case. The action was brought upon a land contract. The respondent, in consideration of four hundred dollars to him paid, agreed to execute and deliver to the appellant, within one year from the date of the instrument, a deed of certain real estate. On the third day after the expiration of the year, he made, and caused to be tendered to the appellant the deed, who refused to accept it, saying that he would not take it unless he was obliged to by the contract. It does not appear that any objection was made to the deed, and it was probably refused'because it was not tendered within the year. The deed was thrown upon the floor of the appellant’s house, and it appeared that he afterwards had it in his possession. But he doubtless did not intend receiving the conveyance, if the respondent was in default, for he seasonably demanded the four hundred dollars which he had paid upon the contract, and upon its being refused, brought his action to recover it. These facts appearing on the trial, the circuit court granted a nonsuit on the motion of the respondent.

We do not discover any peculiar stipulations in this contract, which takes it out of the rules applicable to such agreements ; and the following authorities show that a vendor of real estate, who has covenanted to convey by a day certain, is not in default until the party who is to receive the conveyance, being entitled thereto, has demanded it, and waited a reasonable time to have the same drawn and executed. Fuller vs. Hubbard et al., 6 Cow., 1; Hackett vs. Huson et al., 3 Wend., 249; Connelly et al. vs. Pierce, 7 id., 129.

Judgment of the circuit court is affirmed with costs.