
    Tomlinson v. Smith et al.
    
    In an agreement for the sale of land, which provides as follows: “But should, the taxes, and the note above described, not be paid by the time they become due, then I reserve the right to sell the above-described land at any time thereafter, to any person or persons,” time is of the essenee of the contraet.
    "Where a bill in chancery to enforce .the specific performance of a contract to convey land, in which time was of the essence of the contract, alleged that the respondent had waived the performance-of the contract as to time, and set up a contraet as follows: “In April, 1854, in a conversation had at Bellevue, your orator informed said W. (the agent of respondent), that your ■orator had become the assignee of said B. (.with whom the contract was made), in the contract aforesaid, and said W. agreed .to wait on your orator for several months for payment of said note (the note given for the price o'f the land), and that he would convey the said land to your orator, on payment of said note and interest, providing that all the taxes were paid,” as •.evidence of the waiver ■ and where the bill alleged further, that the complainant had paid all the taxes on the land; ffeld, That the subsequent contract alleged, was without mutuality or consideration, and was not sufficient to revive, and extend the time, on. the original contract.
    
      Appeal from, the■ Dubuque District Court.
    
    This is a bill in chancery to enforce the specific performance of a contract to convey real estate* commenced by Tomlinson against Smith and others. The bill, in substance* shows that "Wilson, being the agent of Fain and Branner* for the sale of land warrants, on the 23d of June, 1851, in their behalf, entered into' an agreement with one Blancet, to locate the lands described in the bill, in their names, and took the note of Blancet, payable to said Pain and Branner* for two hundred and twenty dollars* in one year; and on their part, Wilson, as such agent, executed a writing, describing said note,, and stipulated, that if the note should be paid, on or “ before the time it became due, and the taxes arising on the land shall be paid,” to convey the land tO' Blancet, which writing contained a concluding clause, as follows: “But should the taxes and note above described* not be paid by the time they become due, then I reserve the right to sell the above-described land at any time thereafter* to any person or persons.” This agreement was assigned by Blancet to one Cargrave, in October, 1851, and he, in March* 1852, assigned the same to plaintiff.
    It is alleged, that in April, 1854, in a conversation had between complainant and said Wilson at Bellevue, complainant informed said Wilson, that he had become the assignee of said Blancet in the contract as aforesaid* and said Wilson agreed to wait on complainant for several months for payment of said note, and that he would convey the said land to complainant, on payment of said note and interest, providing that all the taxes were paid. Complainant avers that he paid all the taxes on the lands; that Wilson had full power to give the extension, and did give the same, as agent for Pain and Branner; that Thomas, Smith, who well knew that complainant had become the purchaser of said land* and assignee of said Blancet, intending to wrong complainant, on the eleventh day of May, 1854, applied at the office of Wilson, and represented that Blancet had gone to California, and that he, the said Smith, wished to purchase the land, and that there was nobody who claimed the said land, bnt did not state that complainant had become the assignee of Blancet, though such fact was well known to said Smith j and that Wilson having temporarily forgotten the conversation between him and complainant, sold the land to Smith, who bought with notice that complainant had equities in the said land: That on the 12th July, 1854, complainant tendered to Smith the amount paid by him for the land, with a deed for him to execute; that Smith declined the money, and refused to execute the deed; that the lands have greatly risen in value; and that part of the lands have passed into the hands of innocent purchasers. Several defendants are made to the bill, and complainant prays that the sale to Smith may be decreed fraudulent on his part; that an inquiry may be had as to what portions of said lands have passed to innocent purchasers; that Smith be compelled to convey the residue to complainant, and pay over the money received for the parts sold. The amount paid by Smith for the land, is brought into court, and tendered by the bill. To this' bill, the respondents demurred, on the ground, among others, that it contained no equity, which demurrer was sustained, and the bill dismissed. The complainant appeals, and assigns, the sustaining of the demurrer as error.
    
      Smith, IBKiriLay & Poor, for the appellant.
    
      Ben. M. Samuels, for the appellees.
   Isbell, J.

In considering this case, we shall regard the last point made by the demurrer only, which is “ there is no equity in complainant’s bill.” Though other parties are made to the bill, relief is prayed against Smith alone. The original agreement, which is at the foundation of this case, was made between Blancet, of whom the complainant is assignee, and. Eain and Branner, grantors of Smith. This agreement is substantially on the part of Blancet,' that he will pay, on or before a year from the 23d of June, 1851, to Eain and Branner, the sum of two hundred and twenty dollars (for which he gave his note), and all taxes on the land in controversy. On the part of Eain and Branner, it is agreed that if he does so, he shall have 'a deed for the land, on request. But a reservation is made in the agreement, that if he does not pay the taxes and note, by the time they become due, they shall have the right to sell the land at any time thereafter, to any person or persons.” That time was of the essence of this contract, and so understood to be by the original contracting parties, and by the complainant, who attempts to set up that he has stipulated for an extension of time on the same, from the express stipulation of the agreement itself, there is no room to doubt.

There is nothing apparent in the bill, to show that Blancet was ever in possession of the land, or that prior to its purchase from the government, he had any claim upon, or interest in it. There is, then, nothing to give this contract anything of the character of a mortgage. We must regard it, as what it clearly purports, to be on its face, a conditional covenant to convey. The record discloses nothing whereby it appears, that from the time the note fell due in June, 1852, up to April, 1854, complainant had in any way evinced an intention to comply on the part of Blancet, by paying the note, and though during all this time,' he had been the assignee of Blancet, it does not even appear that Eain and Branner had notice of this fact. Eain and Branner, by the terms of the contract, had a right to sell to any persons or persons, notwithstanding the note of Blancet was still in their hands, •after it became due, it remaining unpaid. Notson v. Barret, 1 G. Greene, 303. What effect a sale would have upon the right to recover upon this note, is another question, and one not stipulated for in the contract.

Complainant having thus lain by, without evincing any intention to take the land, or in any manner becoming .bound to discharge the contract on the part of Blancet, until the land had risen in value, and he perhaps beyond the reach of process, leaves complainant in no condition to be the peculiar favorite of a court of equity. See the remarks of Kent, Chancellor, in Benedict v. Lynch, 1 John. Ch. 375, and grounds of special performance reviewed and case cited.

The right that Pain and Branner had to sell the land, after the note fell due, continued, unless by some act on their part, they divested themselves of that right.

It is claimed they have done this. This leads us to consider the pretended agreement with Wilson, whereby it is claimed this contract was revived, and the time extended on the same. This is stated in the following language: “In April, 1854, in a conversation had between your orator and said Wilson, at Bellevue, your orator informed said David S. Wilson, that your orator had become the assignee of said Blancet, in the contract as aforesaid, and said Wilson agreed to wait on your orator for several months for payment of said note, and that he would convey the said land to your orator, on payment of said note and interest, providing that all the taxes were paid.1» And your orator charges that he paid all the taxes on the said lands.” Does this show a valid, binding agreement to revive the contract 'and extend the time for its performance ? .We think not. In the first place, there is no mutuality. Complainant was not bound to pay the note of Blancet, nor does he, by anything here shown, become bound. Again, there appears no consideration whatever for this agreement. The only plausible pretext for one, is that complainant, in faith of the promise of Wilson, has been induced to pay taxes which he would otherwise not have paid. But while it might so appear at first view, still it is not so stated in the bill. True, the bill charges that complainant has paid all the taxes on said land, but not that he has paid in pursuance of the agreement, and from anything the bill shows, these taxes may have been paid before the conversations with Wilson, or after the sale to Smith.

We think this contractor agreement with Wilson, as stated, is without mutuality, or consideration, and was not sufficient to revive and extend the time on the original contract; and, that, therefore, Eain. and Branner had a right to sell at the time they sold to Smith, and, of consequence, Smith had a right to buy.

The demurrer will therefore.be sustained, and the bill dismissed.  