Jones v. Hert

ANDERSON, C. J.

(1-3) The portion of the contract providing that after a default in the payment of any installment of the purchase price, and a failure, within three months thereafter, to pay np all past dues, all money paid was to go as rent, and the instrument was to become “null and void,” was in no sense an option to .the vendee to abandon the contract and defeat her unconditional promise to pay the purchase price *114 of the lot, but Avas iu tended for the purpose of giving" the vendor some remuneration for the land in case of a default in the purchase-money installments. Therefore, the obligation on the part of the vendee to pay the purchase price of the lot being unconditional and not optional, the words “null and void,” as used in the contract, meant that the sale should be voidable at the election of the vendor in case of a default by the vendee — Stewart v. Griffith, 217 U. S. 323 , 30 Sup. Ct. 528, 54 L. Ed. 782 , 19 Ann. Cas. 639; Wilcoxson v. Stitt, 65 Cal. 596 , 4 Pac. 629 , 52 Am. Rep. 310 ; Nelson v. Sanders, 123 Ala. 615 , 26 South. 518 . This right of the vendor to terminate the contract could be, and was, Avaived by an acceptance of several payments upon the purchase price as such; after the claimed default, and Avhich were made within a very short time previous to the death of the said vendee. Purchase money due from a deceased vendee upon a valid contract of sale is such a debt of the decedent as the representative may rightfully pay. — 18 Cyc. 418; Probasco v. Cook, 39 Mich. 714 .

“The presumption is- that the party making a contract intends to bind his executors and administrators,, unless the contract is of that nature which calls for some personal quality of the testator, or the words of the contract are such that it is plain no presumption of the kind can be indulged in. — Tremeere v. Morison, 1 Bing. [N. C.] 89; Reid v. Tenterden, 4 Tyrwhitt, 111; Kernochan v. Murray, 111 N. Y. 306 [ 18 N. E. 868 , 2 L. R. A. 183, 7 Am. St. Rep. 744 ]. Where a party has entered into a contract to purchase real estate, and dies before it is conveyed to him and before he has paid for it, his heir or devisee is entitled to have his executor pay for the realty out of the personal estate. — Broome v. Monck, 10 Ves. 596, 611, reargued 619; Livingston. *115 v. Newkirk, 3 Johns. Ch. [N. Y.] 312; Wright v. Holbrook, 32 N. Y. 587 ; 1 Sugden on Pow. [8th Am. Ed.] 293a; 3 Red. on Wills [2d Ed.] 302, § 11. The executor is not permitted to violate the contract of his testator after the latter’s death. — Wentworth v. Cook, 10 Ad. & El. 42; Siboni v. Kirkman, 1 M. & W. 419, remarks of Parke, B. In Quick v. Ludburrow, 3 Bulst. 30, Lord Coke said that, if a man be bound to build a house for another before such a time, and he which is bound dies before the time, his executors are bound to perform this. To same effect, Tilney v. Norris, 1 Ld. Raym. 553, Tremeene v. Morison, and Reid v. Tenterden, supra.” Chamberlain v. Dunlop, 126 N. Y. 45 , 26 N. E. 966 , 22 Am. St. Rep. 807 .

It has been held in some cases that where the contract of sale is executory, where the deceased did not receive the property, and the estate cannot complete the sale to an advantage, the purchase price will not be a charge against the estate; but these cases seem to be founded upon statutes providing against such a condition. — Miskimen v. Culbertson, 162 Ill. 236 , 44 N. E. 396 .

(4) The claim in question had not matured when this petition was filed, but the rule is, when such claims become absolutely due at some future time, there is usually a statutory provision to allow them to- be proved. — 18 Cyc. 418. We have such a statute. — Section 2601, Code of 1907.

(5) The result is the contract of sale was in full force and effect when the vendee died, and the amount due upon same was a valid charge against her estate, unless the contract was rescinded or terminated by mutual consent through the negotiations between Judge Craig, representing the husband of the deceased vendee, and Jones, acting for the Mabry Company. *116 Whether or not this could have been accomplished unless Judge Craig had authority to bind the heirs as well as the husband of the deceased vendee, we need not decide, for the reason that the proof fails to establish a rescission or termination of said contract. There may be a conflict between the evidence of Judge Craig and that of Mr. Jones, as to all that was said by them; but according to the evidence of Craig alone, taken in connection with the letters in evidence, there was no absolute and unconditional agreement reached whereby the said contract was rescinded or terminated. Judge Craig said: “I came to ask if you wouldn’t cancel this contract for that 38 feet of land, take the lot back, and pay him the money that he'paid.”

He said: “I will take the lot back, and you can tell him he needn’t pay any more, and you can tell him that he can have the rents that have accrued since last October.”

It must be noted that Jones, acting for the company, did not accept the proposition made by Judge Craig, but made a counter one, to the effect that he would not restore the money previously paid in, but would let Hence have the rent accrued since October. Judge Craig did not then and there accept this offer, but, in effect subsequently declined the same by writing Jones that the contract of sale was not binding upon the vendee, and demanding the return of ail that had been paid on the lot.

As the right of the petitioner to sell the land was contested upon the sole ground that the claim of the Mabry Company was not a charge against the estate, and it was therefore unnecessary to sell the land for the payment of debts, we think that the probate court erred in disallowing said claim and in dismissing the appellant’s petition; and the decree is reversed, and one is here *117 rendered, granting the relief sought, and the cause is remanded for further proceedings in the probate court.

Reversed, and rendered, and remanded.

McClellan, Sayre, and Gardner, JJ., concur.