Reference

Full Case Name

Prescott G. Hale v. Amos W. Cravener

Cited By

12 cases

Status

Published

Syllabus

1. Vendos and pubchasek — of the right of rescission—conditions upon which it rests. Where one has obligated himself to convey to* another a fee simple title to a tract of land by a warranty deed, before the vendor can rescind the contract for non-payment of the purchase money, he must not only tender to the purchaser a proper deed, but must also be able to convey a marketable title,—that is, a title not subject to such reasonable doubt as would create a just apprehension, clone that persons of reasonable prudence and intelligence would be willing to take and pay the fair value of the land. 2. A person holding land in trust under a will, made a contract for its sale, agreeing to make a warranty deed conveying the title in fee, and to furnish an abstract showing title and his power to sell and convey, tendered his deed after the filing of a bill by the heirs of his testator to set aside the will, and on refusal of the vendee to accept the deed, and perform his part of the contract, the vendor filed his bill to rescind the sale. It was held, that as the vendor was not able to convey such a title as would satisfy the covenants of his agreement, he could not put the purchaser in default by the tender, and demanding performance before the termination of the suit to contest the will, which was his. authority to convey. In such case, no prudent man would accept the deed subject to the doubt and uncertainty cast upon his right to convey by the filing of the bill to set aside the will. 3. A contract for the sale and conveyance of land provided that the-vendor, on or before a day named, should make and deliver to the purchaser an abstract showing title and the right to convey, and that if the abstract failed to show a good title, then the cash payment which had been made should be returned to the purchaser and the contract determined: Held, that the clause relating to the rescission of the contract if the abstract did not show a good title, was for the benefit of the purchaser, and that the vendor could not take advantage of it to-rescind the contract. 4. A party who seeks to determine his contract by availing himself of a condition therein contained providing for such determination, must bring himself strictly within the terms of such condition. Such a condition is not to be construed liberally, nor enlarged to include facts or circumstances not within its terms, but on the contrary, is, in contracts for the sale of land, to be taken most strongly against the vendor. 5. A vendor can not make use of a condition to rescind his contract-for the purpose of getting rid of a duty which attaches to Mm upon the-rest of the contract. 6. A trustee under a will made a contract for the sale of a tract of land, and $500 was paid down. The vendor was, by a given time, to furnish the purchaser with an abstract showing title and his right to convey, and if he failed to show a good title, then the $500 was to be returned and the contract to terminate. Independently of this, the vendor covenanted that on performance by the purchaser he was to-convey and assure to the latter a fee simple title. The vendor furnished. an abstract, which on its face showed a good title and right to convey, but in fact there was a bill then pending, filed by the heirs of the testator, to set aside the will, not shown in the abstract: Held, that the vendor had not brought himself within the terms of the condition, although his abstract did not show any defect in his title, and that he could not rely on facts outside of the abstract as a ground of rescission, and further, that he was bound to convey by his covenant to that effect. 7. As a general rule, a contract can not be determined or rescinded by a party to it for non-performance of the other party, unless the former is in a position to demand a specific performance. 8. Same—waiver of prior performance. Under a contract for the-sale of land, the purchaser was to pay down $500, which was done. The vendor was then, by a certain time, to furnish the vendee an abstract showing a good title and power to convey such a title, and in ten days-thereafter the purchaser was to pay $3500, and execute notes for the-balance of the price, seemed by mortgage, when the vendor obligated himself to convey the title in fee simple. It was also provided, that if the abstract, when furnished, failed to show such title, the $500 was to be returned and the contract to be determined. The abstract was furnished, showing a good title, but failed to show the pendency of a bill to set aside a will, under which the vendor claimed authority to sell and convey: Held, that each party was bound to perform in the order stated,—that the doing of the preceding act required the performance of the succeeding act by the other, and that one party might waive the doing of the preceding act by the other, and proceed to the performance of the succeeding act.