Opinion
No. 21997
Decided April 2, 1930.
Contracts — Default by vendee of land contract — Vendor cannot recover unpaid purchase price without alleging tender of deed.
Upon default being made by a vendee of a land contract, the vendor cannot in an action upon the contract recover from his vendee the balance due upon the full purchase price stated therein, without alleging tender of the deed of conveyance.
ERROR to the Court of Appeals of Cuyahoga county.
This case arises as an action instituted in the municipal court of Cleveland. The plaintiff, The Will-O-Way Development Company, filed a statement of claim, the material portion of which is as follows:
"Now comes the plaintiff herein and for its cause of action against the said defendant herein says that the said plaintiff is a corporation duly organized, existing and doing business under and by virtue of the laws of the State of Ohio.
"This plaintiff further says that on the 12th day of October, 1926, the plaintiff and the defendant entered into a land contract providing for the sale and purchase of Sublot No. 44 in Will-O-Way Beach, a copy of which land contract is hereto attached, marked 'Exhibit A'; and made a part hereof.
"This plaintiff further says that under and by the terms of said land contract the said defendant promised and agreed to pay the sum of $1,100.00 as the purchase price for said Sublot No. 44.
"This plaintiff further says that the said defendant paid the sum of $393.84 upon said purchase price, leaving a balance due this plaintiff in the sum of $822.96, with interest thereon at the rate of 6% from July 30th, 1928.
"This plaintiff further says that the said defendant has failed and refused to comply with the terms and conditions of said land contract on her part to be performed, and has refused to make any further payments upon the contract price for said lot, and that the said defendant has utterly breached the said land contract and has repudiated the obligations thereof.
"This plaintiff further says that it has performed all the terms and conditions on its part to be performed, and is ready, willing and able to fully comply with said land contract at all times; that the said defendant is indebted to the said plaintiff in the sum of $822.96, plus interest at the rate of 6% per annum from the 30th day of July, 1928."
The petition prays for judgment in the sum of $822.96.
A demurrer was filed to this statement of claim on the ground that it does not state a cause of action. The demurrer was sustained, and the plaintiff not desiring to plead further, judgment was rendered thereon.
Upon error proceedings being prosecuted to the Court of Appeals, the judgment of the municipal court was affirmed.
The case comes into this court upon allowance of motion to certify the record.
Messrs. Thorman Goldman, for plaintiff in error.
Mr. Frank Morton, for defendant in error.
May a vendor, upon default being made by the vendee of a land contract, bring an action at law upon the contract for the recovery of the balance of the full amount agreed in such contract to be paid by the vendee, and recover a personal judgment against the vendee for such balance, without alleging and proving tender of a proper deed of conveyance to the vendee?
The plaintiff in error urges that the agreement to pay the purchase price constituted an express promise to pay a definite sum of money at a fixed time, and that since the vendee failed to pay, an action lies, without tender of the deed, against the vendee to recover the amount of money due and unpaid, according to the express terms of the contract.
The contract contains the usual acceleration clause, so that the full amount is now due. The vendee has not taken possession, and hence the plaintiff in error claims that the contract is executory, and the promise of the purchaser is independent of any agreement to convey.
The plaintiff in error cites no decisions from any courts of last resort in support of its contention. On the other hand, it is the general rule that where a conveyance is to be made on payment, and payment is to be made in installments, an action for the purchase price, or for a sum which includes the last installment, should show the tender of a deed. The decisions upon this point are gathered together in 35 A. L. R., 115, which cites cases from some fifteen courts of last resort supporting this doctrine.
To the same effect is Prichard v. Mulhall, 127 Iowa 545, 103 N.W. 774, 4 Ann. Cas., 789, which held:
"1. Assuming that upon breach of an executory contract for the sale of land the vendor may bring an action at law to recover the purchase price, it can only be maintained on a tender and production in court of a proper deed of conveyance for the use of the vendee.
"2. Upon the breach by a vendee of an executory contract for the sale of land, the vendor's remedy is an action in specific performance or at law for damages, and an ordinary action for the recovery of the purchase price will not lie."
In Jones v. Tschetter (1923), 46 S.D. 520, 194 N.W. 839, the syllabus states: "Even though a contract for the sale of land gave the vendor the right to elect to continue the contract in force after the purchaser's default, the vendor was not thereby entitled to recover the purchase price specified in the contract, especially where he did not tender performance, but his remedy was either in equity for specific performance, at law for damages for breach of contract, under Rev. Code 1919, Sec. 1971, or for strict foreclosure under section 2914."
In Walsh v. Coghlan, 33 Idaho 115, 190 P. 252, it was held: "A vendor who retains title to real property as security for the payment of the purchase price which, according to the contract of sale, was to be paid in installments, whereupon he was to convey the property to the vendee and furnish an abstract showing clear title, is not in position, when all unpaid installments are due, to demand a forfeiture of the vendee's interest, or to maintain an action for the purchase price, without tendering the deed and abstract."
Dubois v. Andrews, 57 Okl., 227, 152 P. 440, is a direct authority to the effect that the covenants in this case are mutual and dependent. It holds as follows in the syllabus: "Where a contract is made to convey land upon payment of the purchase money, the covenant to convey and the one to pay are mutual, dependent covenants, and after the entire purchase money is due, an action to recover it cannot be maintained unless the plaintiff offers to convey or tenders a deed for the land upon full payment of the purchase price."
There is some conflict in the decisions upon the question whether the covenants are dependent or independent. Benjamin v. Savage, 154 Minn. 159, 191 N.W. 408, 35 A.L.R., 97. However, we do not consider that the promise to pay on the part of the defendant in error in this case is independent of the agreement upon the part of the vendor to convey.
Under the contract, when the final installment of purchase money has been paid, the vendor is to cause the land to be conveyed to the vendee by warranty deed. This makes the agreement to pay the purchase money dependent.
Hence it follows that the municipal court was correct in sustaining the demurrer to the petition.
Judgment of the Court of Appeals affirmed.
Judgment affirmed.
KINKADE, ROBINSON, JONES, MATTHIAS and DAY, JJ., concur.
MARSHALL, C.J., dissents.