Bass v. Gilliland's heirs

5 Ala. 761

Opinion

COLLIER, C. J.

It is certainly an acknowledged rule in equity, as well as at law, that the proofs must harmonize with and sustain the allegations of the complainant’s bill, in order to entitle him to the relief sought. In the present case, the ' contract sought to be enforced, is alleged to be an undertaking by Bass to make a title to Gilliland to half of the south half of section seventeen, &c.; while the vendor, by the condition of his bond, agrees to perfect the vendee!s title to “ half of the south of seventeen, &c.” It is insisted that the contract is too uncertain in its terms to authorize a court of chancery to enforce its performance, and is not such as the complainant has stated.

The terms employed in describing the sub-division of land, the moiety of which was sold to the complainant, are not so precise and accurate as they should have been; yet it is believed that they are sufficiently descriptive to. indicate what was the contract of the parties. By the half of the south of a section, we must understand a quarter section ; the south of it must have some legal sub-division, and as there is none to which that term can appropriately apply but a half section, the reasonable conclusion is, that, that was the quantity intended to be described. — Again: Such a construction must be placed upon the contract.that it may if possible be effectual, ut res magis valeat quampereat, and to this end, it is allowable to interpret it most strongly against the obligor. If there were reasonable doubt upon the face of the agreement, what was the extent of -the obligation of the vendor, that doubt would be removed by the application of these rules.

But if it were conceded that the written evidence of the contract is too imperfect to warrant such a decree as the bill seeks, does the conclusion follow, that the defect cannot be supplied by ■extrinsic proof. Will not a court of equity reform a contract, so as to make it conformable to the precise intent of the parties, if from fraud, mistake, or want of skill, the meaning and intention of tho parties has not been properly expressed, but has in reality been changed. [Paysant v. Ware, Barringer, et al., 1 Ala. Rep. 160, and cases there cited.] The answer of Bass, as well as the proofs in the cause, very satisfactorily show that half of the south half of the section was the subject matter of the sale, and if the bond does not prove this, it is to be attributed to fraud, mistake or want of skill in drawing it: and upon either ground, might (if necessary) be reformed.

We will not inquire whether, to entitle the vendee to a specific performance, it was indispensable that he should have paid or tendered the purchase money on the day it became due ; but conceding this to have been necessary, we will consider whether it was done, or dispensed with by the vendor. On the day appointed, the vendee meets Bass in the neighborhood of the residence of the latter, and proposes to pay him five hundred dollars, the amount stipulated, which the vendor refuses to receive, because some of It was bank bills : the parties then separate, the vendee to go to a neighbour’s to get the specie, with the agreement that they should meet again in the evening, when the vendor would receive the money. In the course of the day the ven-dee received several hundred dollars in specie, met the vendor and offered to pay it; the vendor then proposed, that as it was late, and he was not at home, the vendee should call at his house the next morning: this was assented to. The next morning, a large majority of the witnesses testify that the vendee went to the vendor’s house with the avowed purpose of paying him the mo: ney, about eight, or half past eight o’clock, but the latter had left home about fifteen minutes previonsly; the vendee went in pursuit of him, but whether he overtook him does not positively appear. The next week, the vendee having in his possession more specie than was due to the vendor, offered to pay him so much as he was entitled to. In addition to all this, it is shown that Bass frequently said before the money became due, that the vendee should not have the land if he could prevent it; that he could not get the money at the day it was payable ; that the contract was defective, &c.

It is perfectly clear that the vendor assented to the non-payment on the day the money became due, and on the succeeding day he prevented the payment by having left home at an early hour. The vendee seems to have been prompt in endeavoring to comply with his contract, and to have done as much as could reasonably have been expected of him. When the vendor waived a strict performance by the vendee, and 'designated another day, it was incumbent on the latter to pay on that day, or excuse himself for the neglect. Here, the vendee was in no default, but attended at the appointed time and place with requisite promptness ; having done this, he could not be expected to remain at the vendor’s house until his return, or follow him from place to place. It was quite sufficient that he renewed the offer to pay, upon meeting him the next week.

If then, fault rests upon any one, for the. non-payment of the purchase money, it is the vendor, and he cannot, consistently with the principles of natural justice and equity, set it up as a ground why a specific performance should not be coerced.— [Driver v. Fortner, 5 Porter’s Rep. 21, 22, and cases there cited.]

It is argued for the plaintiff in error, that as the contract left it discretionary with the vendee whether he would consummate his purchase, it imposed no obligation upon him; and as it must be binding upon both parties, or voidable, at the election of either, it cannot be enforced against the vendor. The recital of the contract indicates that it was the intention of Bass to sell, and Gilliland to purchase an undivided moiety of a half section of land: the latter gives his note for the purchase money, and the former undertakes, upon the payment of the note, to make a title as soon as he shall obtain a patent from the government. Had the recital stopped here, there would have been no room for controversy ; but the condition of the bond goes further, and provides that if the vendee shall pay. hi-s note when the same becomes due, the bond shall remain in full force ; “ if not, then the bond to be handed over to said Bass, and notes given back to Gilliland.” These latter terms are unusual in such contracts, and if literally interpreted, would seem to provide for its rescission. But whether they authorised the vendee to put an end to the contract by failing to pay the purchase money, is a question, which, according to the view we take of the case, need not be decided. We will, however, cite one case in which the facts were somewhat analagous upon this point. In Barbour’s ex’rs v. Brookie, [3 J. J. Marsh. Rep. 512,] it was held, that a title bond for land, to be paid for by instalments, containing the following clause, “ bat if said vendee fail to make good the above payments, in that case the above tract of land to revert back to the vendor,” did not authorise the vendee to surrender the land and rescind the contract at his option. The clause was considered merely as declaratory of the law, viz: if the purchase money was not paid, the vendor should hold the title. Conceding to the last clause in the condition of the bond, the effect that is claimed for it by the vendor, and still it cannot avail him as a defence. The evidence recited showed that neither party considered the contract at an end when the money became due, but acted upon the hypothesis that its obligation still continued. What passed between them at that time, amounted to a re-affirmation, and took away the right of rescission under the contract, if it was provided for by its terms. It was a renewal of the vendee’s promise to pay his note, and of the vendor’s undertaking to make a title, if the money was paid within the time given; and neither party can absolve himself from a performance at pleasure, but to give to either this privilege, it must appear that the other was in fault. We have already seen that no fault is attributable to the vendee.

Bass, in his answer, admits that he has sold two hundred and twelve acres of the half section to Carter, which is of about equal value with the one hundred and eight acres, to which he still retains the title. It was clearly competent, if the complainants so elected, for the chancellor to have ordered a conveyance of the latter part of the land, vvithout requiring a division first to. be made according to quality and quantity. The sale made to Carter, and the affirmation of the equality of value ,of the respective parcels, forecloses all objection on this point by Bass; for in this respect he cannot be prejudiced, but the decree may be beneficial to him, as it relieves him from accountability to Carter, which would result from an interference with the sale to him.

The bill, we have seen, alleges’a tender of the money by Gilli-land, or that which is equivalent, when the same became due; and this allegation is abundantly proved. It alsq,goes further, and offers to bring the money into court, or pay the same to Bass, as the order or decree of the court may direct. This, we think, in the absence of all proof to show that Gilliland, in his life-time, or his heirs since his death, have not kept the money ready to pay whnever required, is sufficient to have authorized the chancellor to relieve the complainants from the payment of interest. The vendor voluntarily refused to receive the money, and it was the duty of the vendee to have retained it, and if he has done nothing more, it would be unjust to charge him with the payment of interest.

It is insisted that the complainants cannot claim relief upon the ground that a tender was made by the vendee; because the money was not brought into court and deposited at the time the bill was filed. It may be conceded that such was the law in respect to pleas of tender to an action at law; but the analogy of such a plea to the bill in the present case, is not perceived. In the suit at law the plaintiff is seeking to recover a sum of money, a part or all of which, the plea admits to be due and offers to pay. Here, the vendor is seeking to dispossess the vendee of a tract of land which he had previously sold him, upon the .ground that he had not paid for it according to his contract; the vendee goes into equity, insisting that the money was duly tendered by him, and refused, expressing a readiness and willingness' to pay it as the court may direct, and praying a specific performance of the contract. The bill seems to us to go sufficiently far, quite as far _ as is usual, where a similar object is sought to be accomplished. If the vendee had paid the money into court, and the rules applicable where a plea of tender is interposed, were to govern, the vendor might have, taken it out, and either accepted it in full satisfaction of the purchase money, or proceed in his action at his option. [2 Arch. Prac. 203-4.] And this, although the vendor had been incapable of making a title according to his contract. To prevent the possibility of loss to the vendee, we think it most proper that he should retain the money in his hands, subject to such order as the court might make. If the money should not be forthcoming upon the requisition of the chancellor, it would be entirely competent to dismiss the bill, or so dispose of the entire case as to protect the rights of all parties.

It remains but to add that the cause has been disposed of, according to the principles we have laid down, and the decree is consequently affirmed.