Winton v. Sherman

1. Tender; DEED: in action on bond. In an action at law to recover the consideration agreed to be paid for real estate not conveyed, but which by the contract of purchase was to be conveyed at the time of payment of the consideration, it is a sufficient defense that the deed had not been delivered or tendered: aliter, in a proceeding in equity to foreclose the bond as a mortgage.

Appeal from BlacJchawJc District Court. This action is brought upon a contract for the sale and purchase of certain lands in Blackhawk and Floyd counties. The contract is signed by both parties, and by it the plaintiff agrees to. sell and convey, by good and sufficient deed, to the defendant, the lands mentioned, at a time specified, if the defendant shall first make'the payment named; and the defendant agrees to buy the land, and to pay the sum stated at the time fixed. Time is made of the essence of the contract, with the right of forfeiture at the option of plaintiff, upon defendant’s default. The suit is in equity to'obtain judgment and foreclose defendant’s interest in the land. There' was an answer filed by the defendant containing several counts, and in the fifth couqt it was set up as a defense that the plaintiff had not tendered or delivered to defendant a deed for the land. To this count in the answer, the .plaintiff filed a demurrer, because it did not' state facts sufficient to constitute a cause of defense. The demurrer was overruled and plaintiff appeals.