Distler v. Dabney

<p>CONTRACT TO CONVEY — VENDOR’S WANT OF TITLE — WAIVER OF STRICT PERFORMANCE — PLEADING — ASSUMPSIT — TRIAL.</p> <p>In an action for rescission of a contract to convey land on the ground that the defendant at no time during the life of the contract had title thereto, it is error to strike from defendant’s answer paragraphs alleging that defendant held a contract for the purchase of the land from a third party, who was absent from the state and had neglected to execute a deed, although payment had been made in full; that plaintiff, although he had solicited and obtained from defendant an extension of the time of performance of the contract for live months, sought to take advantage of the absence of defendant’s vendor and of defendant’s consequent inability to procure a deed from him by suddenly, and long before the time agreed upon, making a tender and demanding his deed, in order to find a pretext for the rescission of the contract because the land had depreciated in value.</p> <p>Money paid under a contract for the conveyance of land cannot be recovered in an action of assumpsit, unless it appears, upon the whole case, that the grantee had an equitable right to rescind the contract, and that the grantor should not, in good conscience, be permitted to retain the money paid.</p> <p>It is error to compel the trial of a cause as an action at law, when both the complaint and answer invoke the equity powers of the court.</p> <p>Where the holder of a contract for the conveyance of lands makes payments thereon after knowledge of his vendor’s want of title, he cannot take advantage of such fact, until after full payment or tender thereof.</p> <p>Although the time of deferred payments is made the essence of a contract for the conveyance of land, yet where strict performance thereof has not been required, and the purchaser does not make payments upon time but asks and secures extensions, he is in no position to require his deed on the last day, and the vendor has a reasonable time to convey after demand.</p> <p>(Dunbar, C. J., and Scott, J., dissent.)</p>