Birdsall v. Waldron, 2 Edw. Ch. 315

The Vice-Chancellor: For the purposes of this motion, it is in vain to say that the complainant is a trustee for the defendant in respect to the purchase money. He can only be so by the defendant’s admitting the contract to be one which ought to be specifically carried into effect. Now, this the defendant denies. She will not admit the money to belong to her or that she is'a creditor or cestui que trust of the fund. It would seem, therefore, to be an anomaly to require the complainant to deposit money in court to which she disclaims all right and pretension.

If this defendant would only admit herself to stand in the relation of creditor or cestui que trust to the complainant, then there would be no difficulty: for the complainant is desirous of paying the money, provided she will accept of it. The argument, on the other side, however, is that the complainant insists upon being considered a purchaser and in possession, as owner, and whereby, (as it is contended) he is precluded from objecting to the application to his case of the rules which attach to any other purchaser in regard to payment into court or a deposit.

What then is the law of this court on the subject of paying in purchase money under contracts which are sought to be enforced against purchasers 1 It appears to be this:—Where the vendor has thought proper to put the purchaser into possession, upon an understanding between them that the latter shall not pay the purchase money until he has a title, the purchaser cannot be called upon to pay the money into court; and the reason is, that the understanding becomes a matter of contract which the vendor must abide by, and he cannot call upon the court to interfere and compel the purchaser to part with his money before he has a title where there is no surprise or difficulty thrown in the way of the vendor by the purchaser : Gibson v.

Clarke, 1. Ves. & B. 500. Nor will the purchaser be compelled to pay the purchase money into court before the completion of the title where the vendor has voluntarily permitted him to take possession without any stipulation or agreement about paying the purchase money : for it was a folly to permit it: Clarke v. Elliott, 1 Mad. C. R. 606.

And so, if the purchaser be in possession under a title anterior to the contract or provided possession were given independently of the contract and there is laches on the part of the vendor in completing his title, there, the court will not order the purchase money to be paid in : Freebody v. Perry, Cooper’s R. 91.; Fox v. Birch, 1 Meriv. 105. In both the cases last referred to, motions were made for that purpose and refused.

And from these and other cases, it appears to be well established, that the court will not order purchase money to be paid before a title is given, unless under special circumstances—such as taking possession contrary to the intention or against the will of the vendor or where the purchaser makes frivolous objections to the title, or throws unreasonable obstacles in the way of completing the purchase, or is exercising improper acts of ownership by which the property is lessened in value: Bonner v. Johnston, 1 Meriv. 366.; Boothby v. Walker, 1 Mad. C. R. 197.; Sugden on Vendors, 169.

No such circumstances exist in this case; and if the defendant stood before the court acknowledging the contract to be binding upon her and one which, as seller, she was to perform, but that circumstances existed to occasion a delay in the performance without any fault on the part of the complainant as purchaser, he would not, although in possession, be obliged to pay the purchase money before obtaining a title, and much less can he be compelled to part with the money while his vendor is resisting the performance.

So far as the motion is intended to affect the complainant in this respect, it must be denied, with costs. If the defendant thinks it advisable to pay in the five hundred dollars, to be invested or deposited with the Life Insurance anci Trust Company, she can have leave to do so, without affecting the question or prejudicing the rights of either party.