Reed's Heirs and Administrators vs. E. F. Chambers, 6 G. & J. 490

Stephen, J., delivered the opinion of the court. The question in this case arises upon the following statement of facts: On the 18th of October, 1829, Gen. Philip Reed sold to Richard Spencer a tract of land in Kent county, for the sum of seven thousand dollars ; which land was afterwards, on the 1st day of December, in the same year, sold by Spencer to the complainant.

Prior to the sale from Reed to Spencer, the farm had been mortgaged to Gettings for the sum of three thousand dollars; and the land was then subject to sundry liens arising from judgments against jReed, which, together with the mortgage, amounted to more than the purchase money. On one of those judgments an execution had been issued, and the farm levied on by the sheriff for a considerable sum of money due to Anderson.

The contract of sale made between Reed and Spencer is in substance as follows : Reed sold to Spencer his farm for seven thousand dollars, out of which was to be paid the balance of the mortgage, and judgment at the suit of James M. Anderson and Edward Anderson; also a mortgage and debt due by Reed to James Gettings, of Baltimore county ; and any balance which might remain due, was to be paid with interest to Reed at the expiration of the term of twelve months. It was further stipulated, that Anderson’s claim was to be paid by Spencer on or before the 2d of December next.

In a short time after this contract, to wit, on the 2d of November, 1829, for the purpose of securing the title to Spencer, it was agreed between Reed, Spencer, and the sheriff, that the land should be sold by the sheriff under the execution then in the sheriff’s hands; and it was advertised for sale on the 2d of the following December. On the 2d of November, in the same year, Reed died. At the sale the complainant, who had previously bought Spencer’s interest, became the purchaser, for a sum which, added to the mortgaged debt, amounted to seven thousand dollars.

The complainant then sold his title to Mitchell for the sum of eight thousand five hundred dollars, with an understanding that Mitchell was to pay the mortgaged debt, and Anderson’s judgment, and to pay the balance to complainant. As the most eligible mode of obtaining the title for Mitchell, it was agreed by all the parties interested, that Mitchell should be returned as the purchaser, and obtain a deed from the sheriff, for which purpose the land was again exposed to sale, and Mitchell bid a sum which, added to the mortgage, amounted to eight thousand five hundred dollars.

The sheriff reported the sale as made to Mitchell for the sum of four thousand nine hundred and thirty-nine dollars and fifty cents, and the court ordered the same to be applied to the execution under which the land was sold, and to other judgments which were liens at the time of Reect’s sale, excepting the sum of one thousand five hundred dollars, which was paid to the clerk, and afterwards deposited in bank.

The seven thousand dollars, the purchase money agreed to be paid to Reed, having been applied to the payment of the mortgage debt and the judgment, the question for the court to decide is, whether the complainant is entitled to the fifteen hundred dollars, the surplus money beyond the sum agreed to be paid to Reed, which Mitchell bid for the land under his contract with the complainant. There can be no question but that the contract between Reed and Spencer was legal and binding upon the parties, it being in all respects perfectly conformable to the requisitions of the statute of frauds and perjuries.

The verbal agreement entered into on the 2d of November of the same year, was no variation or change of the written contract for the sale of the land, but only indicated the mode in which the title was to be secured to Spencer by Reed. It was, in effect, to carry the contract into execution, and not to add to, vary, or change it.

As to the objection insisted upon in the answer, that Spencer forfeited his interest under the contract of purchase, by not paying the purchase money according to the terms of it, we think it wholly untenable, because the principle is well settled, that even where the time of payment is of the essence of the contract, a strict compliance at the day may be waived by the vendor. See 1 Johns. Chan.

Rep., 270, where the principle is stated to be, that in the sale of lands, time may make part of the essence of the contract, and on default at the day without any just excuse, or any acquiescence, or subsequent waiver by the other party, the court will not help the party in default. In this case, if the money was not paid as stipulated by the written contract, the non-payment at the time originated from the express agreement of the parties, and all the effect of such omission upon their their respective rights, must be considered as waived.

We therefore think that there is no error in the decree of Kent county court, and that the same ought to be affirmed with costs. decree affirmed with costs.