Citation Numbers: 48 Misc. 570, 97 N.Y.S. 298
Judges: Wright
Filed Date: 11/15/1905
Status: Precedential
Modified Date: 1/13/2023
This action is brought by the executors of William Hunt deceased, to foreclose an equitable lien for the purchase money under a contract for the sale of lands and for a deficiency judgment against the defendant Elmer Lake. Said contract was made by the plaintiffs’ testator as vendor, and one Wolsey Glasby since deceased and Elmer Lake defendant herein, as vendees, on March 29, 1900. The purchase price was $1,000 payable on or before one year from the date of the said contract with interest. The deed was to be delivered under the contract on payment of the contract price and interest. By its terms the contract bound the executors of the respective parties. Two payments appear to have been made on the purchase price: The one on July 2, 1900, of $215; the other on July 16, 1903, of $150, leaving $877.56 past due and payable.
The defendants demur to the complaint on the ground that it fails to allege a tender of a deed of land made before action brought, or an offer to- convey, and also that it fails to allege that the plaintiffs have title to the land and are ready, able, and willing to convey. The plaintiff urges that since the contract of sale reads: “ On payment of the contract price and interest he (vendor) would execute and deliver a warranty deed of the said premises ”, the payment of the money was a condition precedent to the delivery of the deed, and that said obligations are independent, and therefore the allegations of tender or offer to convey are unnecessary.
I think the conditions in the contract are concurrent as to time and dependent; and that an offer to convey should have been alleged in the complaint.
The payment of the purchase money and the delivery of the deed were intended by the parties to take place at the same time. This, according to common knowledge, is the universal practice in such business transactions, and doubtless was so intended by the parties.
“ The determination of the question what are and what are not dependent covenants is not one free from difficulty, and many of the cases are so irreconcilable that they are studied with little profit or assistance to the judgment. Each case must be determined by the cardinal rule of interpreting all
“Although many nice distinctions are to be found in the books upon the question, whether the covenants or promises of the respective parties to the contract, are to be considered independent or dependent; yet it is evident, the inclination of courts has strongly favored the latter construction, as being obviously the most just. The seller ought not to be compelled to part with his property, without receiving the consideration; nor the purchaser to part with his money, without an equivalent in return.” Bank of Columbia v. Hagner, 7 U. S. (Law. ed.) 219; 1 Pet. 455.
The words “ on payment ” and kindred expressions are held to indicate concurrent conditions in the following cases: Culver v. Burgher, 21 Barb. 324, was an action upon a note due immediately, given for the purchase price of land upon foreclosure, under an agreement that “ on payment ” of said, no.te the maker was to have the title to the land. The court said: “ The promises or undertakings were mutual and dependent, and the title to the land, and the payment of the money were to be simultaneous acts. The plaintiff should have caused the proper papers to be prepared for perfecting the title in him, and should have tendered them to the defendant before bringing his action upon the note. * * * When the deed is to be given on or upon the payment of the consideration, the acts of paying and conveying are concurrent acts.”
In Courtright v. Deeds, 37 Iowa 503, 508, it was held in a contract of subscription the words: “ Provided that upon such payment there shall be delivered a certificate of stock ”, etc., indicated a state of dependence; a tender of the stock would be prerequisite to a suit for the subscription.
In Hill v. Grigsby, 35 Cal. 658, the instrument provided that the plaintiff should convey “ as soon as ” the purchase money was paid. In Bohall v. Diller, 41 Cal. 532, the terms of the contract were that the plaintiff “ upon the payment of the purchase money was to convey ”. These stipulations were held to be dependent covenants and that neither party could sue without performing, or an offer to perform on its part.
Where the whole of the purchase money or an installment thereof has become due and the conveyance of the land is to be made on its payment, the payment of the money and the conveyance of the land are held to be dependent acts. The following cases are illustrative of this principle. In Johnson v. Wygant, 11 Wend. 48, where the consideration money, payable in installments, was due before the bringing of the action the court say: “ The defendant covenanted to pay the plaintiff for the land, $155 in three equal annual payments from date, with interest annually on the whole sum, until paid; ‘ and upon the payment thereof, (the covenant proceeds) I am to receive from said Johnson a good warranty deed of said land’. The payment of the last installment, on the whole consideration money, and the giving of the deed, were to be concurrent acts. Upon the payment of the money the deed was to be given.” See also Parker v. Parmele, 20 Johns. 130; Glenn v. Rossler, 156 N. Y. 161. In Beecher v. Conradt, 13 N. Y. 108, the contract was to pay in five payments, and upon the express condition of the payments, the deed to the land was to be executed and delivered. No installment having been paid, an action was brought for the whole purchase money. There was no averment or proof of a tender of a conveyance, or of a readiness or willingness to convey. The court held that while the covenants to pay each installment were originally independent and the plaintiff had a right to sue for each installment as they severally became payable, yet when the last installment became due the payment of the whole of the unpaid purchase money and the conveyance of the land became dependent acts and that the plaintiff was not entitled to recover without proving an offer before suit brought to convey the land to the' defendant on receiving the purchase price.
Ewing v. Wightman, 167 N. Y. 107, was an action to recover on notes given to represent deferred payments for cer tain lands, which by contract were to be conveyed “ on payment in full of the purchase money at the time and in the
In Frey v. Johnson, 22 How. Pr. 316, where the deed was to be executed on April first, provided and upon condition that the defendant should pay $4,000 on that date and the remaining sum on July first, the court say: “The parties were mutually bound — the one to convey and the other to pay on the 1st of April. The covenant by. the plaintiff to deliver the deed and by the defendant to pay and secure the purchase price were dependent covenants. The words ‘ provided and upon condition ’ do not render them other than dependent. * * * In such case, when the delivery of the deed by one party and payment by the other are dependent, the one on the other, neither party can maintain an action for a breach without showing performance or an offer to perform on his part.”
In Glenn v. Rossler, supra, Judge Martin says: “While an examination displays a want of harmony in the authorities
In the present case the purchase money was due and payable on or before one year from the date of the contract, and “ on payment ” of the purchase price the deed was to be delivered. The balance of the purchase price is now due and unpaid, and this action is brought to foreclose the vendees’ rights under the contract of sale. The agreements of the contract come fairly within the principle of concurrent conditions, as expounded by the authorities above.
It remains to inquire as to the effect of the failure to make an offer in the complaint to execute a conveyance and to set up in the complaint an averment of a willingness to convey. The general rule is, as we have seen above, that where the conditions in a contract are mutual and dependent, neither party can maintain an action at law against the other until he has performed or tendered a performance on his part
Under these authorities it must be held that an offer to convey, at least, should have been set forth in the complaint.
In addition to the fact that no offer to convey is alleged in the complaint, it does not appear in the' complaint that the plaintiffs are ready and able to give good title.
The demurrer must be sustained with leave to serve an amended complaint upon payment of costs within twenty days after the service of the order to be entered hereon.
Demurrer sustained with leave to serve an amended complaint upon payment of costs within twenty days after service of order entered herein.