Booth v. Saffold

1. Where A and B entered into a written contract, in which A agrees to sell and make a fee simple title to B to a parcel of land, and B agrees to pay to A, $800 in cash on a fixed day thereafter, and to give on that day his note for $300, due one year thereafter, and B took possession of the land: Held, That the covenants of A to make the deed, and of B to pay the money, were mutual and dependent covenants, and an action would lie in favor of A for the money on his offer to perform, and B thereupon failing or refusing to pay the money. 2. In mutual covenants of this character, it is not necessary that a formal tender shall be made by either party. If one offers to perform his part of the covenant and the other refuses, the right of action is complete, and it is not necessary that the party offering to perform shall prepare the deed and tender the same. 3. If B buy land from A and take possession, he cannot resist the payment of the purchase-money if he has not been disturbed in the possession by showing A’s want of title, unless he show that A is insolvent, or show other facts to establish the insufficiency of his warranty.

Covenants. Tender. "Warranty. Before Judge Eobinson. Morgan Superior Court. March Term, 1872. Thomas P. Saffold brought assumpsit against Eobert N. Booth, and alleged that on November 25th, 1867, plaintiff and defendant entered into a written contract, by which plaintiff agreed to make to defendant a fee simple title to a certain house and lot in the town of Madison, in consideration of which said defendant agreed to pay to plaintiff $800 on January 1st, next thereafter, and to give his note for $300, due December 25th, 1868; that after the making of thé said contract said defendant went into possession of said property as the owner thereof; that said defendant has failed, and refused to pay said sum of money, and to give his note; that plaintiff has been, and now is ready to make to said defendant a fee simple title to said house and lot, whenever said defendant will perform his part of said agreement. Prays process may issue, etc. The defended pleaded: 1st, The general issue; 2d, That the contract'sued on was made with the understanding that he was to pay for said property, with the proceeds of a house and lot sold by him to Dr. W. L. Hitchcock; that said Hitchcock has failed to pay said purchase-money which has rendered defendant unable to meet his engagement, thus conditionally entered into; 3d, Paramount title to said property purchased in a person other than plaintiff. The evidence is unnecessary to an understanding of the decision of the Court, and is therefore omitted. The jury returned a verdict for the plaintiff for $1,100 principal, $304 24 interest and costs of suit. The defendant moved for a new trial on the following grounds, to-wit: 1st. Because the Court refused to charge as requested, as follows: “That if the jury believe from the evidence that plaintiff did not have a good title to the whole of said property, he, defendant, is not required by law to pay the purchase-money, and then sue upon a breach of the warranty, but may avail himself of plaintiff’s not having such a title as a defense to an action against him to recover the purchase-money.” 2d. Because the Court erred in charging the jury as follows : “ That by the contract the obligations of plaintiff and defendant were concurrent and to be performed at the same time.” 3d. Because the Court erred in charging the jury as follows: “That the declaration made to the defendant by the plaintiff, that he was ready and willing to make a deed to the defendant if he would pay the money, was a sufficient legal tender of the deed.” 4th. Because the Court erred in charging the jury as follows: “That the question as to whether or not the plaintiff had a good title to said property has nothing to do with the case.” 5th. Because the verdict of the jury is contrary to the following charge of the Court: “By the terms of this contract the plaintiff is bound to make a fee simple title to the premises, and deliver the same to the defendant before the defendant is required to pay to the plaintiff the purchase-money, and unless you believe, from the evidence, that the plaintiff made and tendered to the defendant a fee simple title to the premises, or was prevented from so doing by some act of the defendant, the plaintiff cannot recover.” The motion for a new trial was overruled, and defendant excepted upon each of the aforesaid grounds, and assigns said ruling as error.