Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-01-04

defendants were in default in a condi,
ton precedent to the right to require
a deed, in that an inventory Of the
stock of store goods, the inventory
price OF which was to constitute part
OF the purchase price of the lands, had
not been heretofore made as provid
cd in the contract; and that a suftic
tent proof Of ability of McVeety to con
vey had been made, while defendants
had been proven to have been in de
fault; and that defendants cannot be
heard to claim the right to a deed from
McVeety instead Of from Ross, owner,
in the performance of the contract
because defendants did not specifical
ly object on that ground to the suftlc'
lent title offered them by the deed
from the owner direct to the defend
ant company. Plaintiff seeks to recov'
er the difference between what the
land owner, Ross, would have been
paid for the land, $3S,0OO.00 and the
$66, coo. 90 contract selling price to de-
PENDANTS. I'D on trial recovered a YER
dict for $4,000.
HELD:
I. That 10 have performed his con.
tract according to its terms, defend
ant must have been able to convey by
his own warranty deed the land he
has contracted 70 SO convey, under the
provisions Of Section 5401, r. c. 1908,
providing that: IAN agreement to
sell real property binds the seller to
execute a, conveyance in form suttici.
ent to pass title to the property
2. That under section 1858, R. c.
1905, providing that: AN offer of
performance must be free from any
conditions which the creditor is not
bound On his part to perform" plant
if has never offered a performance OF
his contract to convey, even granting
the deed has been sufficient to convey
title to the full tract of land covered
by the contract; and as the tender OF
the deed of the third party owner
could not constitute a compliance with
the contract calling for a deed of Nc
Veety to defendants, proof of the offer
of the third party, to SO convey all said
tract is not sufficient to constitute
proof of McVeety's ability to perform
his contract with defendants.
8. The right to the covenants Of
warranty by deed from the seller is a
valuable, property right III the pur.
chaser that must be given as required
by the contract, unless expressly
waived by the purchaser.
8. The right to the covenants OF
warranty by deed from the seller is q
valuble paetaoin tsha etaet taota tata
valuable property right in the pur
chaser that must be given as required
by the contract, unless expressly
waived by the purchaser.
4. Defendants, by merely refusing
to perform upon the tender of per
Torrance here offered by Ross did not
by f,:ing to demand the deed of Nc
Veety instead Of the one rendered,
waive the right contracted for, that
McVeety should deed as grantor to
them as grantee, aid that the title
should come to the defendant com
pany through McVee".
5. Proof that a buyer Of real estate
would have received title from a third
person to land conveyed by the con
tract is not proof of ability in the sell
Ter to perform his contract to convey
by his warranty deed 10 his. purchaser.
6. Without proof OF ability in a
seller Of real estate to convey to his
purchaser in accordance with his o II
tract with such! purchaser, there can
be no proof of detriment or injury
o%ccasioned by seller by a refusal Of
his purchaser totperform the contract.
Proof Of the sellers ability to perform
lies at the base Of any right of his to
recover, and is a condition precedent
to any right in him to recover. With
out proof of such ability, no cause of
action is established.
Z. With no cause of action estab-
lished as in plaintiff because no abil-
ity in HIM to perform the contract
has been shown, proof that the de
PENDANTS were in default in the per
Torrance Of any act precedent to the
delivery Of the deeds and payment OF
the consideration therefor is immater-
ial, as it can neither cure o effect
plaintiffs inability to perform the con-
tract at any time during the life there.
s.. The evidence precludes any
right Of plaintiff to recover. and the
motion Of defendants for judgment of
dismissal Of this action n~otwithstand-
ing the verdict should have been
granted.
Syllabus by the court.
From a Judgment for plaintiff, en-
tered in the District court of Wells
county, Coffey, j., defendants appeal.
Reversed, and the action is ordered
dismissed on the merits with costs to
defendant.
Opinion by Goss, ].
Pollock & Pollock, and Turner &
Murphy, of Fargo, n D., Attorneys
for plaintiff and respondent.
"a 1nhn C1SElnnoho k< of IIorvo., ~ n