Baxter v. Aubrey

Cooley, J.

Aubrey sued Baxter to recover the purchase price of lands sold to him by executory contracts, and which by the terms of the contracts were to be paid for in annual instalments. The instalments were all due when suit was brought, and Aubrey had tendered the customary warranty deed and demanded payment.

Two principal objections were made to the recovery: first, that Aubrey did not give evidence that the deed she tendered would convey the land; and second, that the matter had become res judicata in a former suit. The circuit judge held neither objection well taken, and Aubrey had judgment.

I. The contracts obligated the vendor when the purchase price was paid to “execute and deliver” to the vendee “a good and sufficient warranty deed.” Baxter claimed that this means a warranty deed conveying the title to the land, and that it was not enough for the vendor to tender a deed sufficient in form, but she must go further and show that she had at the time a title which the deed would convey. We think, however, if the vendee accepts a contract in which the ownership of the vendor is assumed, and agrees to pay for the land without requiring the vendor to produce evidence of his title, the burden will be upon him to show defects. The presumption will be, in the absence of any showing, that he satisfied himself respecting the title when he made his bargain. Dwight v. Cutler, 3 Mich., 566 ; Allen v. Atkinson, 21 Mich., 361 .

II. The second objection arises upon the following state of facts: After all the instalments had fallen due Aubrey brought suit on the contracts, and was defeated on trial, and final judgment passed against her. Subsequently she brought this suit; the cause of action being admitted to be the same. On the trial of this cause *17 she undertook to show that the merits were not tried in the former suit. To make this out she testified that she had never tendered conveyances until after the former suit was disposed of, and her attorney in that suit tesigfied “that he was present at and conducted all the former trial; that it did not appear that plaintiff had up to that time delivered or tendered such deed or deeds as were contracted for in and by said contracts, and on said trial the defendant objected to the plaintiff’s recovery for the reason that it did not appear that any deed or deeds, as required by said contracts, had been tendered or delivered by the plaintiff to the defendants."

This is all the evidence that was given respecting the former trial. The circuit court assumed that the merits could not have been passed upon, because the tender of a deed was a necessary preliminary to a recovery. But. if we concede the necessity of a tender, it does not follow that the merits were not passed upon in the former action. See Bull v. Hopkins, 7 Johns., 22 ; McFarlane v. Cushman, 21 Wis., 401 . The evidence does not show that the former case turned upon the want of this tender; that the court sustained the objection which was made, or failed to receive and pass upon any evidence that would have been proper had the tender been made. It is consistent with this evidence that the defendant in the former suit may have relied upon and established payment, or some other defense equally meritorious. Where the subject matter has confessedly been in litigation before, the evidence that the merits were not passed upon ought to exclude all other hypotheses.

As the case must go back for a further presentation of facts, it would be premature to consider it further now. The judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.