Shouse v. Doane , 39 Fla. 95 ( 1897 )

Carter, J.:

On the pleadings and testimony we think the court below should have granted the prayer for specific performance. It is contended on behalf of appellee, first, that the payment of the last note and taxes was a -condition precedent which had to be performed by complainant before he was in a condition to demand a deed to the premises; second, that time was of the essence of the contract, and therefore a failure to perform any stipulation promptly, on the day same was required by the agreement to be performed, forfeited all claims to a conveyance under the contract; third, that no legal tender of the amount due upon the last note and taxes, was ever made, in that the offer to pay was coupled with a demand for a deed, and no money was actually exhibited; fourth, that the defendant was not bound by the contract to execute a warranty ■deed to the lands, but simply such a conveyance as would pass whatever interest the defendant owned in the lands; fifth, that it was not the duty of the defendant to prepare the deed to be executed under the contract, but such duty devolved upon the complainant.

Upon the first, fourth and fifth contentions of appellee, the evidence was substantially to this effect: The cash payment mentioned in the contract of sale was made when the contract was signed and three-promissory notes were given for the three deferred payments. The two notes first due were paid before the maturity of the last one. Two years’ taxes on the lands had been paid by appellee. These taxes were paid before, they became delinquent, but prior to the expiration, of the time allowed by law within which to pay them, the agent of complainant applied to the collector to pay them, but h.e refused to accept the taxes because they had already been paid by appellee. The last note matured November 27th, 1887. On November 18th, 1887, nearly ten days prior to the maturity of the last note, the defendant prepared or had prepared and executed a deed without covenants of warranty, purporting to convey the lands mentioned in the agreement to Marie E. Shouse in fee simple, in consideration of 0475. and forwarded same to his agent to be delivered upon payment of the taxes and note due November 27th, 1887. On maturity of this note the agent presented it for payment, and the deed for delivery; but compainant declined to receive the deed because it contained no covenants of warranty; and informed the agent that he then had the money to pay the note and taxes, and would pay same upon delivery of a proper deed. The agent handed the deed to complainant, who returned it saying he was entitled to a warranty deed! The agent then forwarded the deed to defendant, stating the complainant’s objections. Defendant thereupon interlined in the deed a covenant of warranty and returned it to his agent who again offered it to complainant. Complainant again declined it as insufficient, and the agent returned it to defendant. The date of this lase tender of the deed is not shown, but was subsequent to November 27, 1887. It further appeared that in December, 1887, the agent exhibited this deed to an attorney, stating to him that the deed originally had a clause of warranty in it which had been erased prior to its execution by the defendant, that without a warranty it was not acceptable to complainant, that it had been returned to defendant, .who had inserted or interlined a clause of warranty, and requested the opinion of the attorney upon the question of its sufficiency, who informed him that the deed was not a good one because it was mutilated, and did not appear to have been re-acknowledged after the interlineations. The agent requested him to write to the defendant stating that it was not such a deed as complainant was entitled to, which he did, and defendant replied that "he thought his lawyer knew as much about what was a good deed’ ’ as certain other people named by him. Defendant never questioned the right of complainant to a warranty deed when told that complainant insisted upon it, but proceeded to make the deed a warranty.

From this statement of the evidence it is apparent that the construction placed upon the written agreement by the parties themselves entitled the complainant to a deed with covenants of warranty, conveying the land in fee simple, that this deed was to be prepared by the defendant, and was to be delivered simultaneously with the payment of the last note and taxes; and we think this practical construction so put upo» ike agreement by the parties themselves must prevail. It will be observed that there is no provision in the contract declaring who shall prepare the deed, or the covenants to be contained therein, and it is at least doubtful, from the language used, whether the payment of the money due upon the last note and ■¿¡asees, and the delivery of the conveyance, were not to be concurrent and simultaneous acts. Where the ■•terms of a written agreement are in any respect doubtful or .uncertain, or if the contract contains no provisions on .a given point, or if it fails to define with certainty the duties of the parties with respect to a particular matter, or in a given emergency, and the parties to it have, by their own conduct, placed a construction upon it which is reasonable, such construction. will be adopted by the court, upon the principle tka.t it is the duty of the court to give effect to the intention-of the parties where it is not wholly at variance with the correct legal interpretation of the terms «of the contract. 1 Beach Modern Law of Contracts, secs. 721, 722; 1 Warvelle on Vendors, p. 121, sec. 5.

As to the second contention, that time was of the «essence -of the contract, it is true the contract contained a stipulation to the effect that time was of the -essence of the agreement, and if any of its stipulations were not duly complied with, all right to the laud and improvements thereon, and all moneys paid therefor, should be forfeited to the defendant, and -thereafter the complainant and wife should hold the land only as tenants at. sufferance. In Woods vs. Bailey, Admr., 3 Fla. 41, text 68, it is said: “No «damage is stated in the bill, but only it is urged that ■time was of the essence of the contract. In Story Eq. Jur., sec. 776, it is laid down as true that courts of equity have regard to time so far as it respects the good faith and diligence of. the parties. But if circumstances of a reasonable nature have disabled the party from a strict compliance, or he comes recenti facto, to ask for a specific performance, the suit is treated with indulgence, and generally with favor by the court.” The provision in the contract referred to was one for the benefit of the defendant, which he could enforce or not at his election (Dana vs. St. Paul Investment Co., 42 Minn. 194, 44 N. W. Rep. 55), and if, subsequent to the time when a forfeiture would occur under the terms of the contract, the defendant by deliberate acts recognized the contract as still subsisting, such conduct would amount to a waiver on his part of the forfeiture. In the case of Paulman vs. Cheney, 18 Neb. 392, 25 N. W. Rep. 495, it is said: “In conclusion, * * * a court of equity will not declare a forfeiture unless compelled to do so. It violates every principle of justice to take the property of one man and give it to another without compensation upon a simple failure to pay at the day, where there has not been gross laches. While in particular cases such forfeitures will be sustained, yet they will be denied in all cases where the vendor has directly or indirectly waived the condition on which they depend;” and it was held that although time was made the essence of the contract and a forfeiture declared for default, yet the acceptance of part payment on the contract waived the condition as to all defaults then existing. See also Ballard vs. Cheney, 19 Neb. 58, 26 N. W. Rep. 587. And in Cheney vs. Libby, 134 U. S. 68, 10 Sup. Ct. Rep. 498. Mr. Justice Harlan says: “Even where time is made material by express .stipulation the failure of one of the parties to perform a condition within the particular time limited, will not in every case defeat his right to sijecific performance, if the condition be subsequently performed, without, unreasonable delay and no circumstances have intervened that would render it inequitable or unjust to give such relief. The discretion which a court of equity has to grant or refuse specific performance, and which is always exercised with reference to the circumstances of the particular case before it, may and of necessity must often be controlled by the conduct of the party who bases his refusal to perform the contract upon the failure of the other party to strictly comply with its conditions.” It was admitted by defendant that the two first notes were not paid promptly; that he collected them with great difficulty and trouble, in fractional amounts at irregular times, as he could get them; that the notes were not fully paid until long after maturity, although he was constantly demanding and pressing payment; that a number of the payments were rents due from tenants on the land which he applied as credits on the purchase money, although by the terms of the contract, the rights of complainant and his wife in the land had been forfeited. Never by word or act did defendant indicate that he would take advantage of any forfeiture until in January, 1888, when formal tender of currency for the amount due him was made by complainant’s agent. He expressly recognized the contract as binding when he tendered the deed of bargain and sale on maturity of the notes, and again when he tendered the warranty deed which occurred after its maturity. He made no demand for possession of the property, did not offer to return the note then unpaid, nor has he ever offered to return it. When complainant’s agent made the-tender in January, 1888, he declined it, not upon the ground that the contract was forfeited, but because-the tender was not made in currency, and it was only after the currency was produced that he claimed that the contract had been forfeited. He is not shown to have b'een injured or inconvenienced in the slightest by the failure to pay on the day named; nor was it shown that the property had increased in value except by the improvements made thereon by complainant, which he testifies cost §1,750. We think by his conduct the defendant waived that provision of the contract making time the essence of the contract, and that the offer on the part of complainants to pay the note-made on or before its maturity, though unaccompanied by an actual tender of the money, followed as it was by an actual tender in January following, entitled complainant to specific performance, notwithstanding the provision in the contract referred to. If it be that complainant was in default in payment of taxes for two years, as contended by defendant, he included these taxes in the amount to be paid by complainant, each time the deed was tendered, which was long after the default in the payment of the taxes. 2 Warvelle on Vendors, p. 826, sec. 11.

As to the third contention, that no legal tender of the money due upon the third promissory note and taxes was ever made, in that no money was actually exhibited, and the offer was accompanied by a demand for a deed, the evidence showed that complainant before the note was due offered to defendant’s agent to pay same; that when the deed was first presented complainant replied that the deed was not the kind he wanted; that when he got a deed to suit him he had the money ready; that he had'. the money then. After which there was inserted. in the deed a warranty clause and it was again presented, when complainant again stated that the deed was insufficient. It is nowhere denied that an actual legal tender of money for the full amount due defendant under the contract, was made by complainant’s agent to defendant in January, 1888, although this tender was accompanied with a demand for a deed. We have seen that the practical construction placed upon this contract by the parties, made the payment of the last note and taxes, and the conveyance of title, concurrent and dependant acts. In such cases before the purchaser can maintain a bill for specific performance, he must pay or tender the purchase money Tn full. Aside from the actual tender made in ■January, 1888, we think the acts of the complainant when the note matured amounted to such a tender as will entitle him to maintain this bill. The complainant was not required to make an unconditional tender. His tender must be, in its nature, conditional ■only, and dependent on and to be peformed only in case of the readiness of the other party to perform his part of the agreement. The requirement of a “tender of purchase money,” used in this connection, ■does not mean a tender strictly valid at law, but means a present readiness, willingness and ability in good faith, to perform the acts required of one by the agreement, provided the other party will concurrently do the things which he is required by the contract to do; and notice by the former to the latter of such readiness, willingness and ability. Smith vs. Lewis, 26 Conn. 110; Clark vs. Weis, 87 Ill. 438, S. C. 29 Am. Rep. 60.

It only remains to be seen if the complainant was justified in declining- to accept the deed tendered. It has been held by this court in Frazier vs. Boggs, 37 Fla. 307, 20 South. Rep. 245, that a contract to convey by “good and sufficient deed” does not bind the party merely to execute a deed good in point of form, but that it obliges him to make a good and perfect title-to the land and to remove any existing incumbrance, or protect the vendee against it. The title, to be good and perfect, must be free from reasonable doubt (3 Pomeroy’s Eq. Jur., sec. 1405), and we think the same rule should apply to the deed tendered, viz: that it be so drafted and executed as to leave no reasonable-doubt as to its legal sufficiency to convey the land, and free from such interlineations and erasures as are reasonably calculated to throw suspicion or cast doubt upon the paper as a valid, bona fide conveyance. A deed is one of the most solemn and important instruments known to the law. It is required to be executed with certain formalities, and it constitutes a link necessary to make out a complete chain of title to real estate. If there are upon its face suspicious alterations, erasures or interlineations, the deed is likely to-be questioned and rejected by prospective purchasers of the property it conveys, and this although it may be legally sufficient to convey the property. In this-case the deed originally contained a clause of warranty. This was stricken out before it was executed by defendant and wife. Subsequently, and after it had been acknowledged, the complainant interlined in the deed the warranty clause without reacknowledging the deed; and it was again tendered in that form. The agent of- defendant to whom the deed was-submitted, doubted its sufficiency; an attorney whose-opinion was asked regarding it, doubted its validity. It is not shown that the wife consented to the interlineation, or that the interlineation was made in the presence of witnesses.’ Were these alterations in the deed sufficient to release the defendant’s wife, who was a signer, and whose signature and acknowledgment were essential to convey her dower .rights? Would these covenants of warranty estop the wife in •case of an after acquired title? If so, and they were inserted without her consent after she had signed the ■deed, was the deed thereby rendered void as to her? After the alteration of the deed, was the prior acknowledgment sufficient to entitle it to record? These and many other questions of like character arising out of the changes made in the deed after its execu - tion and acknowledgment, are not questions free from any reasonable doubt. We do not think the deed tendered under these circumstances was a “good and sufficient deed,” free from any reasonable doubt, and consequently the complainant was justified in refusing to accept it as a performance of defendant’s contract.

The decree of the Circuit Court is reversed, with directions to enter a decree authorizing complainant to pay into the registry of the court for the defendant within some reasonable time to be fixed in the decree, the principal of the note due November 27, 1887, ■and amount of taxes paid by defendant subsequent to the execution of the written agreement, on the lands described therein, with interest upon such amounts at seven per cent, per annum, to February 1, 1888, and upon such payment, requiring defendant to specifically perform said written agreement by the execution ■and delivery of a good and sufficient warranty deed to the premises, as prayed in the bill of complaint. Tate vs. Pensacola, Gulf. Land and Development Co., 37 Fla. 439, 20 South. Rep. 542.