City of Natchez v. Mallery

54 Miss. 499

• Court: Mississippi Supreme Court
• Decided: April 15, 1877
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

This proceeding in rem seeking nothing but the subjection of the land conveyed, it seems manifest that tfye vendee cannot, without offering to surrender the land, escape payment of the purchase-money on the ground that it had no authority to enter into the contract. If it had made expenditures upon the property, it might be that the vendor would be held to have notice of its legal incapacity to make the purchase, and it might consequently be entitled to a rescission and an account; but nothing of the sort is asked here.

So, also, if we grant that parties contracting with corporations of this character, which bylaw can pay debts only by the issuance of warrants on their treasury, are entitled ordinarily to receive warrants only in liquidation of their demands, the principle will not apply where, by the terms of the contract, real estate has been mortgaged for its purchase-money. In such case, the contract, by its terms calling for money, must be enforced, or the property surrendered.

There is no force in the objection that no demand was made previous to suit brought, because, granting this to be necessary, the record shows that demand was made and a tender of warrants offered, which, as we have seen, was insufficient.

Decree, affirmed.