Haynes v. White

Ross, J.: This action, as the case is presented, cannot be maintained. The record shows that on March 1st, 1876, the defendants were in the possession of the land described in the complaint, by virtue of a contract for its purchase from one Robinson, who held the title to it. Upon the land there were then existing certain improvements, consisting of a house and an artesian well. On [40]the day named the defendants executed with plaintiff the contract in writing set out in the complaint, by which the defendants agreed to sell to the plaintiff, and the plaintiff to buy of the defendants, the land in question for the sum of thirty-six hundred dollars, to be paid as follows: One hundred dollars cash; nine hundred dollars on or before two months from the date of the contract; thirteen hundred dollars on or before one year from its date, and the remaining thirteen hundred dollars on or before two years from date. The defendants further agreed, that on receiving the payments at the time and in the manner stated—time being by the contract declared to be of its essence— they would execute to the plaintiff, or his assigns, a good and sufficient deed of the premises. There were, also, other covenants on the part of the plaintiff, not, however, material to be mentioned. At the time of the contract the plaintiff executed his promissory notes for the deferred payments, the last one of which, for some cause not explained, was made payable to the defendant White, or order. Upon the making of the agreement, the defendants placed the plaintiff in possession of the land, including the improvements, and he has ever since remained in possession, and has received the rents, issues, and profits of the premises to a large amount. He paid to the defendants all of the installments of the purchase-money except the last, namely, the $1,300, evidenced by the note made payable to White or order. This note White transferred before maturity to the defendant Thomas, and Thomas transferred it, also béfore maturity, to one Steele, who held it when it became due. Plaintiff knew that Steele held the note, and while it was in his possession paid him interest thereon. When the last payment became due the plaintiff told the defendants that he was prepared to make it, and offered to them the money upon the condition that they convey to him the title to the property.

In view of the facts appearing in the record, we attach no importance to the finding that the plaintiff never offered to pay the note to Steele, nor to the findings in regard to the signing by the defendants of a deed “ sufficient in form ” to convey the title. The manifest effect of the contract, and the manifest intent of all the parties to it, was that in consideration of the plaintiff’s money the defendants were to convey to him the title to