Brace v. Doble

Citations

• 3 S.D. 110
• 52 N.W. 586
• 1892 S.D. LEXIS 49

Syllabus

<p>1. Appellant and respondent^ entered into a written contract for the purchase and sale of real estate therein described, by which, after certain cash payments had been made by appellant, he should, on receipt of a, deed of the premises from respondents, execute and deliver to them a. good and sufficient mortgage on such premises to secure the balance oí the purchase money, the. contract being silent as to the giving of any notes, bond, or other evidence of the indebtedness in place of the contract undertaking to pay. Afterwards respondents sent a warranty deed of the premises, duly executed by them, together with four negotiable promissory notes, made payable at a particular bank, corresponding in amount and times of payment with the terms of the contract, and a mortgage to secure such notes, to a' bank in Massachusetts, where appellant resided, with instructions to such bank to deliver the deed to appellant upon his execution of the four promissory notes and mortgage. Bold, that such offer, made to appellant, did not constitute a tender of the deed, for it was subject to the condition that appellant should sign these notes, which, under the contract, he was under no obligation to sign, and execute a mortgage to secure such notes.</p> <p>2. Such mortgage, expressly reciting that it was made to secure the four promissory notes referred to, was imperfect without the notes, and so to execute such mortgage, refusing, to sign .the notes, was not the execution of a good and sufficient mortgage, as contemplated and provided for in the contract.</p> <p>3. The undisputed evidence showing that appellant had expressly refused to perform on his part, and had so notified respondents, they were excused from their obligation to tender such deed.</p> <p>4. The unqualified refusal of appellant to perform, together with respondents' readiness and willingness, put respondents in the same position as to their remedy as though they had offered appellant a deed, and he had then refuse