Markoe v. Coxe

16 F. Cas. 761, 5 D.C. 537, 5 Cranch 537

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: March 15, 1839
• Status: Published

Opinions

Cranch, C. J.

The defendant, Mr. Coxe, having answered the bill, has moved the Court to dissolve the injunction, which restrains him from reselling the property for the default of the plaintiff in not paying the instalments due, and the interest thereon from the 8lh of December, 1837, according to the terms of the sale.

The plaintiff contends that, as he did not take possession of the properly until the 8th of August, 1838, he is not bound to pay interest for any period before that day.

The sale was made on the 8lh day of December, 1837, and the purchaser was to be entitled to immediate possession. The plaintiff admits that he declined to take possession.

The plaintiff’s counsel cited the cases of Blount v. Blount, 3 Atk. 636, and Fludyer v. Cocker, 12 Ves. 25, to show that interest is not payable upon purchase-money until the purchaser is in possession. But those cases were decided merely upon the general principles of equity. There had been no express promise to pay interest from the day of sale, as there was in the present case. If there had been, there can be no doubt that the chancellor would have decided according to the contract of the parties.

The plaintiff does not seek to be relieved from the contract, but contends that he has a right to be relieved from the interest while he was investigating the title, &c.

I see nothing, in his own statement of his case, which can justify the Court in rescinding the contract in part, and not in the whole ; in permitting the plaintiff to avail himself of the benefit of the contract without taking upon himself the whole of its burdens. It was not the defendant’s fault, that the plaintiff did not take possession of the property immediately after the sale.

I think the plaintiff must pay the interest from the 8th of December, 1837, the date of the sale to the time of payment. But the plaintiff has a right to have the title cleared from the objections which have been made to the deed from the defendant Caldwell to the defendant Coxe, and from want of evidence that the sale was made at the request of the defendant Walter, and from the want of a release of Mrs. Fischer’s mortgage, and therefore the injunction must be continued until those things are done; and the motion to dissolve it must be overruled.