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APPEAL by defendants from a decree of the District Court for Emmet County (Lee, J.) in favor of plaintiff in an action brought to cancel a written contract for the sale and exchange of certain land. Affirmed.

The facts are stated in the opinion of the court.
Mr. C. W. Crim for appellants. E. 482; Herbert v. Stanford, 12 Ind.

Messrs. Morse & Kennedy, for ap- 503; Dubois v. Xiques, 14 La. Ann. pellee:

430; Parker v. Simpson, 180 Mass. 334, Plaintiff is entitled to rescind and 62 N. E. 401; Knappen v. Freeman, 47 cancel the contract because of lack of Minn. 491, 50 N. W. 533; Hamilton title and defects therein.

Brown Shoe Co. v. Milliken, 62 Neb. Primm v. Wise, 126 Iowa, 529, 102 116, 86 N. W. 913; McGowan v. Blake, N. W. 427; Hopwood v. Corbin, 63 134 App. Div. 165, 118 N. Y. Supp. 905; Iowa, 218, 18 N. W. 911; Clark v. Weis, Sneve v. Schwartz, 25 N. D. 287, 114 87 Ill. 438, 29 Am. Rep. 60; Tague v. N. W. 348; Kirby v. Harrison, 2 Ohio McColm, 145 Iowa, 179, 123 N. W. 960; St. 326, 59 Am. Dec. 677; Davis v. Ross, 39 Cyc. 1429; Mulholland's Estate, Tenn. 50 S. W. 650; Miller v. 224 Pa. 536, 132 Am. St. Rep. 791, 73 Horn, Tex. Civ. App. — 149 S. W. Atl. 932; Smith v. Detroit & D. Gold 769; Angel v. Columbia Canal Co. 69 Min. Co. 17 S. D. 413, 97 N. W. 17; Wash. 550, 125 Pac. 766; Drovers' Live Owen v. Pomona Land & Water Co. Stock Commission Co. v. Charles Wolff 131 Cal. 530, 63 Pac. 850, 64 Pac. 253; Packing Co. 74 Kan. 330, 86 Pac. 128, Read v. Loftus, 82 Kan. 485, 31 L.R.A. 89 Pac. 465; Nelson v. Carlson, 54 (N.S.) 457, 108 Pac. 850; Bales v. Wil- Minn. 90, 55 N. W. 821; Higby v. Whitliamson, 128 Iowa, 127, 103 N. W. 150; taker, 8 Ohio, 198; Mosier v. Walter, Martin v. Roberts, 127 Iowa, 218, 102 17 Okla. 305, 87 Pac. 877. N. W. 1126. Plaintiff is entitled to recover for

Gaynor, J., delivered the opinion

of the court: improvements and expenditures because of defendants' failure to furnish

On the 7th day of Novemtitle.

ber, 1913, plaintiff and defendants 39 Cyc. 1400, 1440, 1638; Chabot v. entered into a written contract, by Winter Park Co. 34 Fla. 258, 43 Am. the terms of which the plaintiff St. Rep. 193, 15 So. 756; Erickson v. agreed to purchase from the defendBennet, 39 Minn. 326, 40 N. W. 167; ants certain land in Emmet county, Perry v. Boyd, 126 Ala. 162, 85 Am.

consisting of 320 acres, for the sum St. Rep. 17, 28 So. 711; Bryant v. Boothe, 30 Ala. 311, 68 Am. Dec. 117;

of $32,000, to be paid for as follows: Read v. Loftus, 82 Kan. 485, 31 L.R.A.

By delivering to the defendants a (N.S.) 457, 108 Pac. 850; Richardson

good and sufficient warranty deed v. M'Kinson, Litt. Sel. Cas. (Ky.) 320, to 160 acres in Aurora county, South 12 Am. Dec. 308; Edwin v. Hadley, 4 Dakota, free and clear of all liens Litt. (Ky.) 346, 14 Am. Dec. 140; and encumbrances, except a first Kirkpatrick v. Downing, 58 Mo. 32, 17

mortgage of $2,000, and by executAm. Rep. 678; Thomas v. Evans, 105

ing and delivering to the defendants N. Y. 601, 59 Am. Rep. 519, 12 N. E.

a mortgage in the sum of $22,000 on 571; Lawson v. Vernon, 38 Wash. 422, 107 Am. St. Rep. 880, 80 Pac. 559;

the land purchased from the defendIsaacs v. Bardon, 114 Wis. 142, 89 N. ants; both parties agreeing to furW. 913;_Turner v. Reynolds, 81 Cal. nish abstracts showing good and 214, 22 Pac. 546; Burks v. Davies, 20 merchantable title to each of their Am. St. Rep. 213, note.

respective properties. The institution of a suit to rescind a

Some time after the contract was contract is in itself a sufficient notice

entered into plaintiff took possesof the plaintiff's election to rescind or disaffirm the transaction, and where

sion of the land in Emmet county, this course is taken no previous notice and defendants of the land in Auis required.

rora county, and each held posses2 Black, Rescission & Cancellation, sion up to the time of the entry of § 576; Elliott v. Boaz, 9 Ala. 772; Hart

the decree in this case. After the wig v. Clark, 138 Cal. 668, 72 Pac. 149; California Farm & Fruit Co. v. Schip

making of the contract and before pa-Pietra, 151 Cal. 732, 91 Pac. 593; plaintiff took possession of the EmHarding v. Olson, 177 III, 298, 52 N. met county land, the defendants sub(Iowa, -, 170 N. W. 790.) mitted to plaintiff an abstract of that the plaintiff, relying upon the title from which it appeared that the promise of the defendants to convey title to the Emmet county land was to him a good and merchantable not in the defendants; that there title, unencumbered, placed im

, was a $9,000 mortgage on the land, provements upon the Emmet county and there were other defects in the land, while he was in possession,

, title. To induce plaintiff to take and incurred other expenses.

An possession of the land in Emmet accounting was had between the county and to surrender to the de parties, and in this accounting the fendants the land in Aurora county, use of the land by the plaintiff durthe defendants promised orally to ing the years he was in possession procure perfect title in themselves was taken into consideration. The and to remove all liens and cure all fair rental value of the Aurora coundefects at once. The plaintiff took ty land was also considered and possession of the Emmet county land charged to the defendants. The imand surrendered to the defendants provements put upon the land by the Aurora county land in reliance the plaintiff were shown and conon this promise.

sidered, and on final adjustment the It is reasonably certain from the court found that the use of the Emrecord that the exchange of posses- met county land fairly compensated sion was brought about by these the plaintiff for the improvements promises and plaintiff's reliance put upon the land and the rental rethereon. From time to time there- ceived by the defendants for the after these promises were renewed Aurora county land. A balance was by the defendants, but never ful- struck, leaving nothing due either filled. Plaintiff was at all times upon these matters. ready, able, and willing to perform The defendants appeal, and claim the contract on his part whenever that the court erred in canceling the defendants performed their part of contract, and erred in allowing anythe agreement. The $22,000 mort- thing to the plaintiff for improvegage could not be made until the ments upon the land while he was title to the land purchased was in in possession. the plaintiff. At the time the con- So far as this record shows, plaintract was made plaintiff had no tiff had perfect title to the land in knowledge of the fact that the de- Aurora county. At the time he surfendants were not the owners of the rendered possession to the defendland, or that it was encumbered, ants and took possession of the Emand it was the understanding of met county land he did so with the both parties that the deal was to be distinct understanding that defendclosed on the 1st day of March, 1914. ants would perfect title and be ready Nothing was said about the title to to consummate the contract in acthe land in the contract, but each cordance with its terms on the 1st agreed to furnish the other an ab- of March, 1914, and that an abstract stract showing good and merchant- would be furnished him showing able title.

good and merchantable title on that On the 24th day of March, 1916, date. It appears, however, that this action was brought in equity to some time before the 1st of March cancel the contract, and to restore defendants did furnish the plaintiff the parties to the same position with an abstract. This abstract they were before the contract was showed upon its face that the demade. A decree was entered for the fendants did not have title to the plaintiff, canceling the contract, and land, and that it was largely encumdirecting each party to surrender to bered. This abstract was examined the other the land that was the by counsel for the plaintiff and resubject of the contract. No deeds turned to the defendants on or about had been exchanged to the lands. April 3, 1914, with objections.

It was further found by the court Now, it may be said that, not

Vendor and pur

of date for abstract.

withstanding the fact it was the un- of the defendants to present and derstanding of the parties that the tender to the plaintiff that which deal should be consummated and they had agreed to give him. They closed, and the contract fully per- had agreed to furnish the plaintiff

formed on the 1st an abstract showing good and mer. chaser-waiver day of March, 1914, chantable title. Until this was done,

the plaintiff con- no obligation rested
sented to further
on the plaintiff to -tender of

performance. time by returning the abstract with perform or tender his objections. It appears, how- performance of his agreement to ever, that after the abstract, with pay. Defendants failed to perform objections, was received, the defend- on the day stipulated, and, assuming ants never returned the same to the that plaintiff waived performance plaintiff, and never thereafter ten- on that day and consented to further dered to the plaintiff, or offered the time in which to perform, this did plaintiff, any abstract showing good not waive performance at some and merchantable title; further, time, and did not extend the time that the defendants never did have a for performance beyond a reasongood and merchantable title to this able time. This action was not comland, either at the time the contract menced until more than two years was made or at the time this action after the time when defendants was begun.

should have performed, and the It may be conceded that, when waiver of performance on that day the plaintiff returned this abstract extended performance only for a to the defendants, with his objec- reasonable time. Two years was tions, he impliedly consented not to surely a reasonable time. No perrepudiate the contract on account formance was made or tendered by of the defects, but this was because defendants. Plaintiff's right to reof defentants' promise to immedi- scind, therefore,

ately remedy the was perfect at the failure to furdefects. This did time this action was nish abstract of not release defend- commenced.

Even ants from their contractual duty to on the trial, no tender of performperform within a reasonable time. ance was made, or excuse offered for Where no time is fixed in the con- failure to perform. The fact is that tract or by agree

defendants were not able to perContract-per

ment of the parties form. The court rightly decreed

for the doing, the that the contract should be put at law requires it to be done within a an end; that the plaintiff should be reasonable time. The defendants no longer bound by the contract. having agreed in their contract to The facts in this case bring it convey this land to the plaintiff for within elementary law. No authori- . a consideration named, the consid- ties need be cited to support our coneration named could not become due

clusion. until after defend

As to the proposition involved in ants had performed

the accounting, we have to say our all conditions upon

attention is not called to any error which their right committed in the to the consideration rested. They computation, and it Tallowance for

improvement. could not have insisted on per

seems equitable and formance, and no duty to tender just, under the record made, and the a performance rested on the plain- decree in this respect must stand. tiff until the conditions precedent to

On the whole record, we think the the duty had been fully complied judgment of the court was right,

and it is affirmed. with by the defendants. As a condition precedent to the duty of the Ladd, Ch. J., and Salinger and Steplaintiff to pay, there was the duty vens, JJ., concur.

Rescission

Waiver of date for abstract of title-effect.

title.

formancereasonable time.

Vendor and purchaser-when consideration due.

ANNOTATION.

Time for performance of contract for sale or exchange of land where time

fixed by contract has been waived.

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v.

I. Introductory, 815.

Vermont. Campbell v. WorthingII. General rule, 815.

ton (1834) 6 Vt. 448. III. Necessity and effect of notice of re- Washington. – Opsjon v. Engebo scission, 822.

(1913) 73 Wash. 324, 131 Pac. 1146. IV. What constitutes reasonable time, 826.

West Virginia.-Cosby v. Honaker

(1905) 57 W. Va. 512, 50 S. E. 610. 1. Introductory.

England. - Ex

Ex parte Gardiner The present note includes only cases (1841) 4 Younge & C. Exch. 503, 10 discussing the time for completion L. J. Exch. in Eq. N. S. 46; Hatten v.

v where the time fixed for the comple- Russell (1888) L. R. 38 Ch. Div. 334, tion of the contract for the sale or ex- 57 L. J. Ch. N. S. 425, 58 L. T. N. S. change of lands has been waived, de- 271, 36 Week. Rep. 317. layed, or extended. All cases wherein Canada. Foster Anderson it appears that the time set for the (1907) 15 Ont. L. Rep. 362, affirmed in payment of the instalments of the (1908) 16 Ont. L. Rep. 565, which is consideration of such a contract has affirmed in (1909) 42 Can. S. C. 251; been waived, delayed, or extended Norman v. McMurray (1913) 10 D.L.R. have been excluded, except a few 757, 4 Ont. Week. N. 1256, 24 Ont. wherein the time for the completion Week. Rep. 532. of the contract was the real question Thus, in Taylor v. Baldwin (Ga.) involved.

supra, it appeared that one of the de

fendants contracted to convey to one II. General rule,

of the plaintiffs the title to a lot of After a waiver, extension, or delay land on payment of the balance of the

, of the time set for the performance of

purchase money on a day certain. a contract for the sale or exchange

The vendee thereupon went into posof land, a party is entitled to a rea

session. Subsequently, he sold his insonable time within which to perform

terest to the other plaintiff, who went his part of the agreement.

into possession. The defendant then Arkansas.-Mays v. Blair (1915) 120

sold the land to his codefendant. Ark. 69, 179 S. W. 331.

Three years after the entering into Georgia.- Taylor v. Baldwin (1859)

the agreement, an action of ejectment 27 Ga. 438, 73 Am. Dec. 736.

was instituted against the assignee of Iowa.—Van Vranken v. Cedar Rap

the original vendee. The original venids & M. R. R. Co. (1880) 55 Iowa, 135,

dee thereupon tendered the balance 5 N. W. 197, 7 N. W. 504; Hawes v.

of the purchase money, and demanded Swanzey (1904) 123 Iowa, 51, 98 N. W. 586; Bales v. Williamson (1905)

a conveyance of the lot of land, which

was refused. In a suit instituted for 128 Iowa, 127, 103 N. W. 150; Lewis v. Woodbine Sav. Bank (1917) — Iowa,

specific performance of the contract

for an injunction enjoining the eject-, 165 N. W. 410. And see CARROLL V.

ment proceeding and other relief, it MUNDY (reported (reported herewith) herewith) ante,

was held that not only the bond did 811.

not make time of the essence of the Missouri. St. Clair v. Hellweg

contract, but the act of the parties (1913) 173 Mo. App. 660, 159 S. W. 17.

showed that they did not consider it Pennsylvania. Irvin v. Bleakley

of the essence, and that therefore (1870) 67 Pa. 24; Hatton v. Johnson

plaintiffs were entitled to a reasonable (1876) 83 Pa. 219; Moore's Estate time within which to pay the purchase (1899) 8 Pa. Dist. R. 84, affirmed in money. (1899) 191 Pa. 600, 43 Atl. 474; Haus- In Mays v. Blair (Ark.) supra, an man v. Johnson (1907) 32 Pa. Super. action for the recovery of part of the Ct. 339.

purchase price, it appeared that on the day set for the completion of the con- Iowa, 51, 98 N. W. 586, it appeared tract the parties agreed to change the that a contract for the sale of land contract, and it was further agreed was entered into between the plaintiff that the vendor was to proceed with as vendor, and the defendants as venthe perfection of the title. The court, dees. At the time set for performafter holding that time was not of the ance the plaintiff had a defective title, essence of the contract, decreed that which he proceeded to cure. Several the complaint be dismissed unless the months later, and the day after the complainant was ready to complete plaintiff cured his title, the defendhis contract, and that the defendant ants served a written notice on the should be given a reasonable time to plaintiff that they rescinded the conperfect his title.

tract. In a proceeding to enforce In Lewis v. Woodbine Sav. Bank specific performance, the defendants (1917) Iowa, 165 N. W. 410, it set up their rescission of the contract, appeared that a contract was entered and demanded the return of the adinto for the exchange of land on a vance payment. The court held that, day certain. At the time fixed neither in view of the fact that the defendparty was ready to perform. A few ants had acquiesced in the delay until days later both parties undertook to the title was perfected, equity would perform. The plaintiff objected to not allow them to assign the delay as the title of the defendant, who under- an excuse from performing on their took to perfect the same. Thereafter part. the plaintiff instituted an action to In Van Vranken v. Cedar Rapids & recover the money paid under the con- M. R. Co. (1880) 55 Iowa, 135, 5 N. W. tract. It was held that, time not be- 197, it appeared that the sole heir of ing of the essence of the contract, the an assignee of a contract to purchase defendant was entitled to a reasonable land obtained an extension of time to time in which to perfect his title. pay the instalments due, on consid

In Bales v. Williamson (1905) 128 eration of his paying a higher rate Iowa, 127, 103 N. W. 150, it appeared of interest than that provided for in that the performance of a contract to the original contract, and did not pay convey a tract of land was to be made on that day, but several months later. on a day certain. Time was made the It was held that the extension of time essence of the contract. An abstract amounted to a new contract, and the of title was furnished to the plaintiff provisions of the old contract which prior to the date fixed, but was ob- made time of the essence were not jected to. After the date set for per- applicable. The court said: “Under formance, another

delivered. the original contract the times of This abstract was submitted to the payment of the purchase money of plaintiff's attorney, who advised that the land were made ‘of the essence of an action to quiet title to the tract the contract. Under that contract, a should be instituted by the defendants failure to pay at the time specified to remedy the defect in the abstract. would forfeit plaintiff's right to enThis was immediately done, and the force it. But after default as to all defendants procured a decree several the annual payments, on the 29th of months later. Prior to the procuring August, 1872, a new contract as to of the decree quieting title, the plain- the time of payments was entered tiff instituted a proceeding to rescind

into, and witnessed by the memoranthe contract. The court held that the dum indorsed upon the face of the inplaintiff, having waived performance strument. This new contract extendon the day fixed, and having advised

ed the times of payment to January the procuring of a decree to quiet 20, 1873. It was based upon the contitle, and the defendants having pro

sideration of the increase of interest ceeded with due diligence, could not to 10 per centum instead of 6, and then be heard to de and the perform

interest at the higher rate was acance of the contract on the day set. cordingly, then and afterward, paid.

In Hawes v. Swanzey (1904) 123 It cannot be claimed that after the

was

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