Rourke v. McLaughlin
Before: Sanderson
Synopsis
Construction op Contracts.—If a contract for the sale of land provides that the purchase money shall he paid by instalments, and that if the vendee, at any time, fails to meet his payments, he will surrender the possession of the land to the vendor, this does not entitle the vendee to elect whether he will pay the purchase money or surrender the possession of the land.
Want op Consideration.—If McL. and wife convey to R., for the sum of one thousand dollars, and on the same day, and as a part of the same transaction, R. gives McL. and wife a contract for the sale of the same land, for the same price, payable by instalments, and for a good and lawful deed upon the payment of the purchase money, in an action by R. to recover an instalment, McL. and wife cannot rely upon an alleged want of title to tho land in R. as a defense to the action.
Independent Promises.—If, in a contract for the sale of land, the purchase money is to he paid by instalments, and a deed is not to be given until the whole price is to be paid, the promises of the vendee are independent, and the vendor may sue upon all of them, except the last, without averring a willingness to perform, on Ms part, or tendering a deed.
Defense to an Action upon a Contract for hie Sale of Land.—The fact that the vendor of land is not within the jurisdiction of the Court, is no defense to an action, in Ms name, for the purchase money, although the vendee has not yet received Ms deed, and is not entitled to it, by the terms of the sale, until all the purchase money is paid.
Specific Performance—When Decreed.—The fact that the vendor of land is absent from the State at the time the vendee becomes/ by the terms of the sale, entitled to a deed, does not prevent him from giving a deed voluntarily, nor the Courts of this State from compelling Mm to do so, in person, or by a Commissioner appointed by the Court to act for him.
Idem. — Specific performance will he decreed whenever the parties, or the subject-matter, or so much thereof as is sufficient to enable the Court to enforce its decree, is within the jurisdiction of the Court.
Discharge in Insolvency—When no Defense__If the record of the proceedings in insolvency, neither names the plaintiff, nor the contract in suit, nor states that the defendant has described all Ms debts and liabilities, to tho best of Ms knowledge and recollection, the discharge constitutes no defense to the action.
Sanderson, J., delivered the opinion of the Court: This is an action upon a contract to sell and convey real estate. The contract is Set out in full in the complaint. It appears that the estate in question was sold by the defendant and his wife, and conveyed by them to the plaintiff upon the 15th of September, 1866, and that upon the same day the contract in suit was executed. That the consideration for both sales was the same, to wit: $1,000. That by the contract in suit, the defendant agreed to pay the sum of $1,000, in coin, with interest at the rate of one and one half per cent, per month, to be paid by instalments, as follows : $400, with interest, on the 15th of October, 1867; $400, with interest, on the 15th of October, 1868, and the remainder on the 15th of October, 1869. That, upon the payment of the price, the plaintiff was to make “a good and lawful deed.” That if the defendant, at any time, should fail to make his payments, he was to surrender possession. That the defendant was to have immediate possession under the contract. That this action was brought for the first instalment.
In his answer, the defendant admits the making of the contract, and his failure to pay the first instalment; but alleges:
First—That, under the contract, it is his privilege to pay or surrender possession of the estate; that he has elected to do the latter, and has offered to surrender, and still offers, and will continue to offer, until the termination of this suit.
Second—That, at the date of said contract, the estate was the property of the Central Pacific Railroad Company of California, and not the property of the plaintiff. That the plaintiff falsely represented that he had title, and he (the [198]defendant) made the contract in the belief that the plaintiff could make him a good title.
Third—That, at the time said contract was made, the plaintiff resided in this State, but since then he has removed to Ireland, and is no longer a resident or citizen of the United States, but has become a subject of the Queen of Great Britain; and hence, if this defendant is made to pay the purchase money, he will, for the reasons stated, be unable to enforce the contract as against the plaintiff, or compel him to convey.
Fourth—That he has been discharged from all liability on the contract in question, under the insolvent laws of this State.
At the trial, the defendant offered to prove the matters firstly, secondly and thirdly set forth in his answer; but the Court held that the matters there stated constituted no defense, if true, and refused to hear the testimony; to which ruling the defendant excepted.
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