Winton v. Sherman

20 Iowa 295

• Court: Supreme Court of Iowa
• Decided: April 18, 1866
• Status: Published

Opinion

Cole, J.

i tender-action1?!! bond' In an action at law to recover the consideration agreed to be paid for real estate not yet conveyed, ^ut w^c^) by the contract of purchase, was to be conveyed at the' time of the payment of the consideration, it has been held a sufficient defense to aver and show that the deed had not .been delivered or tendered. See School Distriet No. 2 v. Rogers, 8 Iowa, 316; Berryhill v. Byington, 10 Iowa, 223; Leonard v. Bates, 1 Blackf., 172.

But this rule does not obtain in equity causes, where the court, upon a final decree, can grant just such relief as the plaintiff may show himself entitled to, upon such conditions as shall fully protect the right of the defendants, not only as to the subject matter, but also as to costs. A delivery or tender of a deed, before bringing suit in equity for the purchase-money and foreclosure of lien therefor, or other equitable relief, is not necessary. See Rutherford v. Haven & Co., 11 Iowa, 587, and cases cited.

[Reversed.