Gregg v. Von Phul,
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68 U.S. 274 (1863)
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U.S. Supreme Court
Gregg v. Von Phul, 68 U.S. 1 Wall. 274 274 (1863)
Gregg v. Von Phul
68 U.S. (1 Wall.) 274
1. Whether a contract to give a deed with "full covenants of seizure and warranty" is answered by a deed containing a covenant that the grantor is "lawfully seized in fee simple, and that he will warrant and defend the title conveyed against the claim or claims of every person whatsoever" -- there not being a further covenant against encumbrance, and that the vendor has a right to sell -- need not be decided in a case where the vendee, under such circumstances, made no objection to the deed offered on the ground of insufficient covenants, but only stated that he was not prepared to pay the money for which he had agreed to give notes, handing the deed at the same time, and without any further remark back to the vendor's agent who had tendered it to him.
2. Where a vendor agrees to give a deed on a day named, and the vendee to give his notes for the purchase money at a fixed term from the day when the deed was thus meant to be given, and the vendor does not give the deed as agreed, but waits till the term that the notes had to run expires, and then tenders it -- the purchaser being and having always been in possession -- such purchaser will be presumed, in the absence of testimony, to have acquiesced in the delay, or, at any rate, if when the deed is tendered he makes no objection to the delay, stating only that he is not prepared to pay the money for which he had agreed to give the notes, and handing back the deed offered -- he will be considered, on ejectment brought by the vendor to recover his land, to have waived objections to the vendor's noncompliance with exact time.
3. While it is true that in an executory contract of purchase of land, the possession is originally rightful, and it may be that until the party in possession is called upon to restore possession, he cannot be ejected without demand for the property or notice to quit, it is also true that by a failure to comply with the terms of sale, the vendee's possession becomes tortious, and a right of immediate action arises to the vendor.
A noncompliance with a request to pay money on the ground that the party is not prepared to do so, and a return to the vendor without promise to pay at a future time and without further remark of any sort of a deed offered is a failure to comply with such terms. And ejectment lies at once, without demand or notice, even though the vendor may not himself have been perfectly exact in the discharge of parts, merely formal, of his duty-such want of formality on his part having been waived by the vendee-and, though the vendee may have made valuable improvements on the land.
Von Phul and Gregg entered into articles of agreement on the 6th of December, 1856, by which Von Phul agreed to sell and convey to Gregg certain premises in Peoria, which Gregg agreed to purchase, paying Von Phul for them $8,550 as follows, to-wit: $2,800 on the 1st of March, 1857 (which was paid), and the residue in three payments of $1,900 each in twelve, eighteen, and twenty-four months from the same day. Von Phul covenanted that he would convey the premises by deed in fee simple, "with full covenants of seizure and warranty, on or before the first day of March, 1857," and Gregg agreed to execute his three promissory notes (dated on that day), each for $1,960, payable in twelve, eighteen, and twenty-four months, and secured by a deed of trust on the land sold and conveyed. On the 4th of May, 1860, one Purple, acting by the request and as the agent of Von Phul, tendered a deed to Gregg and demanded, not the notes, but the money due on the contract of purchase. The deed which was tendered covenanted
"That the said Von Phul is lawfully seized of a fee simple in the premises aforesaid, and that he will warrant and defend the title &c., hereby conveyed, against the claim or claims of every person."
Gregg looked at the deed and made no objection to it, but stated that he was not prepared to pay the money, and handed it back to Purple. Gregg, who was in possession, had gone into it under the contract of purchase, and had no other right of possession. Previous to the tender and demand, he had improved the property and built houses on it worth from $6,000 to $7,000. Von Phul was in Peoria while the improvements were being made. His residence, however, was in St. Louis.
On ejectment brought by Von Phul against Gregg in the
Circuit Court for the Northern District of Illinois to recover possession of the property, the court, upon the above facts, decided the law to be for the plaintiff, and the defendants excepted. The question in this Court on error was whether the court below had decided rightly.