Haile v. Smith

Vendor and Purchaser—Action of Ejectment by Vendor—Pleading —Tender of Deed.—A complaint in ejectment by a vendor against a purchaser need not set out the deed tendered to the defendant, and the averment that he tendered a good and sufficient deed of grant, bargain, and sale to the property shows a compliance with his part of the agreement.

Id.—Time of Tender—Provision Making Time of Essence.—The vendor does not lose his right of action for the recovery of the land by not tendering the deed upon the day when the last payment fell due; and the provision making time of the essence of the agreement does not authorize the vendee, by failing to make the payments agreed upon, to treat the contract as rescinded.

Id.—Defense to Ejectment—Continuing Contract of Sale—Tender by Defendant.—The vendor cannot maintain an action to recover possession of the land held under the contract of sale, so long as the vendee continues to recognize the validity of the agreement, and to perform its terms; and an answer denying the tender of a good and sufficient deed for the land, and alleging that defendant has performed all the covenants of the contract on his part, and that, before the date of the alleged tender of a deed by plaintiff, he had tendered the full amount of the last payment, and demanded a conveyance of the land according to the agreement, which demand was refused by plaintiff, and that he had ever since been able, ready, and willing to make such payment upon receipt of a sufficient deed from plaintiff, states a defense to the action.

Id.— Unaccepted Tender op Purchase Money— Release of Land from Claim—Subsequent Tender of Deed.—An unaccepted tender of purchase money, though not releasing the purchaser from his obligation to pay the money, has the effect to release the land from any further claim thereto by the vendor, and to remit the vendor to his personal claim for the purchase money, and a subsequent tender of a deed, and refusal to pay cannot give to the vendor a right to recover possession of the land.

Id.—Pleading—Date of Tender—Uncertainty.—An answer averring a tender of the purchase money on or about a certain date is sufficient as against a general demurrer, in the absence of a special demurrer for uncertainty; and it is sufficient that the answer shows a tender of the purchase money while the plaintiff was treating the agreement in force, though the tender was made after the date fixed by the contract.

Id.—Averment of Plaintiff’s Title.—The allegation of the complaint that at the date of the agreement plaintiff was the owner of the land in fee simple, and that after the maturity of the agreement he tendered to defendant a good and sufficient deed of the lots, is a sufficient averment of plaintiff’s title.

Id.—Lien for Purchase Money not Involved.—A lien of the purchaser upon the land as security for the payment made by him exists only when he is entitled to recover back the payment in case of failure of consideration, and is not involved in an action of ejectment by the vendor when the purchaser relies upon the agreement as being in force, and as entitling him to remain in possession of the land, which he cannot retain and at the same time recover the amount paid under the contract.