1. Where a written agreement for the sale of lands, executed and
sealed by vendor and vendee, binds one party to make a deed for the
property and the other to pay a certain sum, part in cash, within
sixty days, and the remainder in annual installments, with a bond
and mortgage for the deferred payments, the covenants are
concurrent and reciprocal, constituting mutual conditions to be
performed at the same time.
2. The vendor, in such a case, is not bound to convey unless the
first installment be paid, nor is the purchaser bound to pay unless
the vendor is able to convey a good title free from all
encumbrances.
3. Where the agreement to purchase is expressly made dependent
on the "surrender and cancelment" of a former agreement of the
vendor to sell the same land to another person, it is a condition
precedent that the former agreement shall be cancelled and
surrendered.
4. Where the words of the covenant on the part of the vendor are
that
Page 66 U. S. 451
he will "make a deed" for the property, there is a covenant that
the land shall be conveyed by a deed from one who has a good title
and full power to convey.
5. A plaintiff who sues upon an agreement containing such a
covenant must aver and prove not merely his readiness to perform it
in the words of the contract, but that he had a good title which he
was ready and willing to convey by a legal deed.
6. The want of such an averment in the declaration will not be
cured by the verdict upon the presumption that the facts necessary
to support it have been proved before the jury if it appears by the
record that no such proof was offered.
7. Where the terms of an agreement make the sale of land
dependent upon the cancellation and surrender of a previous
agreement with another person, the acquiescence of the former
vendee or his assigns, or the mutual understanding of all parties
interested in the former contract that it shall be regarded as at
an end, is not equivalent to a surrender and cancellation of
it.
8. Acquiescence expressed by parol and mutual understanding that
a title shall be released cannot be made a substitute for a deed of
release or surrender; executed and recorded deeds under seal can be
surrendered and cancelled only by other deeds under seal.
9. An objection to the form of the action or other defect in the
pleadings will not be noticed in this Court when it appears from
the undisputed facts of the case that the plaintiff is not entitled
to recover in any form of action.
This suit was originally brought in the Superior Court of Cook
County, Illinois, but removed thence to the federal circuit court
upon the petition of the defendants and proof that they were both
citizens of Virginia, while the plaintiff was a citizen of
Illinois.
The plaintiff filed his declaration in debt, claiming a right to
recover the sum of thirty-five thousand dollars, being the amount
payable and due on the paper copied by MR. JUSTICE GREER in his
opinion, with interest thereon from the expiration of sixty days
after the date of the paper, to-wit, 20 July, 1859. The declaration
describes fully the property which
Page 66 U. S. 452
Washington and Turner agreed to buy from Ogden, and which is
designated in their agreement merely as the property described in
the John S. Wright contract of June 4, 1855. The
narr.
further avers that the contract with Wright to whom the same land
had been previously sold by the plaintiffs was surrendered and
cancelled, and that the plaintiffs were ready at all times to make
a deed to the defendants for the property sold.
The defendants demurred first, and the declaration was amended.
Then pleaded thirteen pleas, craving oyer four times of the paper
on which suit was brought, and which was fully set out in
plaintiff's declaration. The plaintiff demurred to some of the
pleas, and some of the demurrers were sustained and some overruled.
The pleadings were at length settled so as to raise the
questions:
Whether the plaintiff was ready and willing to perform his part
of the contract by making the proper conveyance to the defendants
of the lands described in the agreement.
Whether the contract previously made with Wright for the sale of
the same lands was surrendered and cancelled within sixty days,
agreeably to the terms of the contract between the present
parties.
Whether it was necessary that Wright should release his title by
a written deed.
Whether the plaintiff, in demanding securities for the deferred
payments, which he had no right to ask, absolved the defendants
from the obligation of tendering the thirty-five thousand dollars
now sued for.
Evidence on both sides was given, documentary and oral. The
court decided the points of law and the jury found the facts in
favor of the plaintiff, for whom a verdict and judgment were
rendered for debt and interest amounting to $36,481 66.
The defendants thereupon took this writ of error.
Page 66 U. S. 455
MR. JUSTICE GRIER.
The very numerous exceptions to the sufficiency of the pleadings
and the correctness of the instructions given by the court all
depend on the construction given to the covenants of the agreement
which is the foundation of the suit. It is in the following
words:
"CHICAGO, June 20, 1859"
"We will give M. D. Ogden, trustee Chicago Land company,
sixty-seven thousand and five hundred dollars for the property
described in the John S. Wright contract with the trustees of the
Chicago Land company, dated June 4, 1855, or thereabouts, and pay
for the same as follows: thirty-five thousand in cash within the
next sixty days, and the balance in one, two, and three years, in
equal installments, with six percent interest, payable annually. It
is understood that it is all payable at the office of Ogden,
Fleetwood & Co., in Chicago. In the event of our being deprived
of the waterfront on block 35, Elston's Addition to Chicago by
Robins, a difference in the purchase money shall be made
corresponding to the value of the property lost. The said M. D.
Ogden, trustee &c., agrees to sell to John A. Washington and
Wm. F. Turner, both of Virginia, the above described property for
the said sum of sixty-seven thousand five hundred dollars, payable
as above, and on the payment of the said thirty-five thousand
dollars cash within the next sixty days, he will make a deed to
said Washington and Turner for said property and take a bond and
mortgage on the same for payment of the balance of thirty-two
thousand five hundred dollars, to be paid as above stated. This
agreement is to be dependent on the surrender and cancelment of
said contract with said Wright."
It is evident that the covenants of this contract are not
independent. They are concurrent or reciprocal, constituting mutual
conditions to be performed at the same time. The vendor is not
bound to convey unless the money due on the first installment
Page 66 U. S. 456
be paid; nor is the purchaser bound to pay unless the vendor can
convey a good title, free of all encumbrance. The agreement shows
that the vendor at that time was not able to give a satisfactory
title, having a deed on record, by which he had covenanted to
convey the same land to another. It is therefore made a condition
precedent by this agreement that this previous contract should be
surrendered and cancelled. The declaration avers that the contract
with Wright was surrendered and cancelled on the 28th day of June,
and that the plaintiff has been ever ready and willing to receive
the money at the time and place, and "to deliver to defendants a
deed of the property." But there is no averment in the
narr. that the plaintiff had a good and sufficient title,
free from all encumbrance, which he was ready and willing to
convey. It is true, the words of his covenant are "that he will
make a deed" to his vendees on receipt of the first installment.
But the meaning of these words in the contract requires that the
deed shall convey the land, and it is not sufficient to aver his
readiness to perform, merely according to the letter of the
contract. The performance must always be averred according to the
intent of the parties. It is not sufficient to pursue the words if
the intent be not performed. The legal effect of a covenant to sell
is that the land shall be conveyed by a deed from one who has a
good title or full power to convey a good title.
A sale,
ex vi termini, is a transfer of property from
one man to another. It is a contract to pass rights of property for
money. This defect in the declaration cannot be cured by the
verdict under a presumption that the facts necessary to support it
have been proved before the jury, because it appears by the record
that no such proof was offered to aid the insufficient averments of
the declaration.
It appears also that the averment with regard to the surrender
and cancelment of the contract with Wright even if sufficiently
pleaded, was wholly without proof to support it, and that the court
instructed the jury that they might presume it without proof. It is
clearly a condition precedent, without the literal performance of
which the purchasers were not bound to pay their money. The vendor
had, on the 4th of
Page 66 U. S. 457
June, 1855, covenanted to sell this land to John S. Wright on
payment of certain installments. The vendors had reserved to
themselves very stringent and unusual powers of declaring the
contract forfeited in case of nonpayment of the several
installments. John S. Wright, on the third of July, 1837, by his
deed conveyed all his right and title to the premises to Timothy
and Walter Wright. This deed was recorded 13 July, 1837.
T. & W. Wright, on the 3d day of December, 1857, conveyed to
James Clapp, and the deed was recorded on the 12th of December,
1857. These deeds could not be surrendered or cancelled by parol.
Both the original and the record should have been cancelled and
surrendered by act of the parties thereto under seal, if not by
all, yet certainly by Clapp. This was not done. The plaintiffs in
error had prepared their money. Their agent called on Ogden to
obtain an abstract of the title and a proper surrender or release
of the outstanding title, and was instructed to prepare proper
bonds and a mortgage. Ogden promised to attend to having a proper
surrender executed, but none was shown or tendered to the agent; on
the contrary, Ogden handed him a mortgage and notes to be sent to
the purchasers to be executed by them. They refused to sign
instruments in that form and returned them to their agent. He
returned them to Ogden, stating, among other reasons, that they
expected a proper release or surrender of the outstanding title,
and that in the absence of such a release, Ogden could not make a
good title nor give possession. A second mortgage and bonds were
then drawn and sent to the purchasers by Ogden, which were also
objected to, and another promise given "that the release should be
attended to."
But no such deed of release or surrender was made, executed, or
tendered to the purchasers within the sixty days. Clapp did not
execute a release till after the 1st of September, which was
antedated as of the 15th of August. On this evidence, which was
uncontradicted, it was clearly the duty of the court to have
instructed the jury that the plaintiffs below had not made out a
case which entitled them to a verdict; on the contrary, the court
instructed the jury as follows:
Page 66 U. S. 458
"2d. By the terms of the John S. Wright contract, if default
were made in the payment of the installment due in 1859, it was
competent for the Messrs. Ogden, at their option, to declare it
forfeited and at an end as a contract for conveyance, and the land
might be granted to another. No release or conveyance in writing by
Wright or his assignee was absolutely necessary in such case in
order to put an end to the contract to convey. Strictly speaking,
Wright, having parted with his interest in the land to Clapp, had
no power over the contract; but if he, with the acquiescence and
consent of Clapp, after default of payment, delivered the contract
to Mr. Ogden, and it was the agreement and understanding of all
parties in interest that the contract was at an end, then it might
be regarded as substantially surrendered and cancelled. That the
offer of the property for sale, and a declaration of forfeiture
after default of payment, might be sufficient as showing the
exercise of the option on the part of the grantor."
This instruction was excepted to by defendant. It was a very
grave error to instruct the jury that the acquiescence of Clapp,
and the mutual understanding of the parties to that transaction,
might be regarded by the jury as an actual cancellation and
surrender as between the parties to this suit. Acquiescence
expressed by parol, and mutual understanding that a title should be
released, cannot be made a substitute for a deed of release or
surrender, executed and recorded. Deeds under seal can be
surrendered and cancelled only by other deeds under seal. No
prudent man would accept a title with full notice on record and
knowledge of such an outstanding title. This contract, by its plain
terms, is "dependent on such surrender and cancelment being made
within the sixty days." It is a condition precedent without the
performance of which, within the term specified, the purchaser had
a just right to declare the contract annulled. To entitle the
plaintiffs below to recover in this suit, the declaration should
have averred that such deeds of surrender and cancellation had been
duly executed; that the plaintiff had a perfect title, free of all
encumbrances, and was able as well as willing and ready to convey a
good title to the plaintiff on the day named in the agreement.
Page 66 U. S. 459
But he was not able to prove such averments, if they had been
made, and his case failed both in its pleadings and its proofs;
consequently there was error in ruling the demurrers of the
plaintiff to the 4th, 6th, and 7th pleas of defendant in favor of
plaintiffs. The pleas alleged proper matters of defense to the
suit, either in whole or in part. They were sufficient on general
demurrer, which goes back to the first error in pleading. And from
what we have already said, the first error in pleading is found in
the declaration. It is not necessary to discuss more at large the
form of the pleadings, or whether the action should not have been
covenant, and not debt, as the plaintiff was not entitled to
recover in any form of action, according to the undisputed facts in
evidence.
The judgment of the circuit court reversed and venire de
novo.
