Griesemer v. Hammond

Contract to Sell Land—Mutual and Dependent Covenants—Objections to Title—Recovery of Deposit—Full Tender of Performance Essential—Good Title Tendered.—Where, under a contract for the sale and purchase of land, the covenants of the contracting parties were mutual and dependent, and each party was bound to a full performance of the contract at the same time, and ten per cent of the cash price of $13,500 was deposited to secure the sale, and the remainder of $6,000 cash was to be paid, and $7,500 secured upon the making of a good title, and if a good title could not be made, the deposit was to be returned, or forfeited, if the vendor was ready to perform, and the purchaser refused to perform, and the purchaser objected to defects in the title, which were met within the life of the contract, by the tender of a good title, the purchaser cannot sue to recover the deposit without tendering full performance on his part, and he is bound to accept the good title offered, and to pay for and secure payment as agreed.

Id.—General Bule as Between Vendor and Purchaser—Outstanding Deed of Trust—Reconveyance from Trustees.—The general rule, as between vendor and purchaser, is that the purchaser cannot sue to recover purchase money paid until after he has made a tender of the purchase money due under the contract and demanded a deed. The fact that, in the present case, there was a deed of trust outstanding did not excuse plaintiff from the necessity of making a tender of the purchase money in order to recover his deposit, especially where the vendor was in readiness to remedy the defect by a reconveyance from the trustees to the purchaser. The vendor had the right to rely upon the purchase money to liquidate the debt secured by the deed of trust.

Id.—Nature of Deed of Trust to Secure Debt—Mortgage.—A deed of trust given as security for the repayment of money is, under the circumstances of this case, regarded as a mortgage. Under the facts, there was no unremovable defect in the title to the property involved in the controversy, and it is sufficient that the vendor through one of his agents tendered to the plaintiff a perfect title to the property.

Id.—Duty op Vendee to Inquire as to Taxes Paid or Existence op Any Encumbrance.—Where the taxes were in fact paid, although the vendee was not informed thereof, it was his duty to inquire as to the condition of the record, and as to whether there were any unpaid taxes or other encumbrance.

Id.—Recorder’s Fee for Reconveyance not Tendered—Waiver op Objection.—The fact that the recorder’s fee for recording the reconveyance was not tendered does not affect the validity of the tender of the reconveyance, especially where if it had been demanded it would doubtless have been paid, and, under the circumstances, such objection was waived by the failure of the plaintiff to object to the reconveyance by the trustees on that ground.