Mitchell v. Sherman

1 Free. Ch. 120

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

The complainant’s bill states the purchase of a tract of land of the defendant, for which he took the defendant’s bond to make a good and sufficient deed to the land, “so soon as the entire and full amount of the purchase money should be paid.” He alleges that the defendant has sued and recovered judgment against him for a part of the purchase money, which judgment he has enjoined upon the allegation of the want of title in the defendant, and prays for the rescission of the contract.

A party who comes into a court of chancery to rescind his contract, upon the ground of the defendant’s inability to comply with his part of such contract, must put his adversary in the wrong. In other words, the complainant must show that he has done and performed on his part whatever, by the terms of the contract, he is required to do, in order to authorize him to demand a compliance at the hands of the defendant. Without this, it cannot appear to the court but that the defendant, when required to act according to the terms of his contract, may remove all the grounds of complaint. These views are fully sustained in 9 J. R. 126, and 12th, 451.

The payment of the purchase money in this case, by the very terms of the bond, is a condition precedent to the complainant’s right to demand a deed from the defendant, and yet there is no allegation in the bill of any offer to pay by the complainant, nor of any demand of a deed. The old maxim, that he who asks equity must do equity, has a pointed application. For any thing that now appears to the court, the defendant may fully comply with his contract, when there is an offer made to pay him his purchase money. If there are incumbrances on his title, he may, in the mean time, remove them. If there is an outstanding paramount title, he may buy it in. Suppose the complainant’s bill was for a specific, performance, instead of a rescission, must he hot show that he had done every thing on his part to have the contract executed? So in a suit at law upon the bond, it would be incumbent on the plaintiff to aver and prove a payment or an offer to pay the pinchase money, before he could maintain his action.

In a case referred to in 3 Monroe’s Rep. 171, where a purchaser holding a bond for title filed his bill for rescission, without applying for performance or offering to rescind until after he was sued for the purchase money, the court held that he was not entitled to a rescission. If the complainant here had made a tender of the purchase money, and demanded his deed, and the defendant had refused, or was unable to convey a good title, a very different case would have been made. In .such a case the court would enjoin the collection of the purchase money until the sufficiency of the defendant’s title could be investigated, and give relief accordingly.

It is unnecessary to express any opinion as to whether the pleadings show the defendant to have a good title or not. The complainant does not show himself entitled to demand a deed, and until then he has no right to institute an inquiry into the defendant’s ability to convey.

The injunction must be dissolved.