This suit was brought on January 3, 1890, by appellee, to enforce specific performance of a contract executed on May 20, 1878, by appellant, whereby he bound himself to convey to appellee the land in controversy upon the payment of two notes executed at the same time. One of these notes became due in twelve months after its execution and the other in two years, and the written contract to convey recited, that as an additional consideration for the land, appellee paid, at the time the bond for title was executed, one-third of the purchase money in cash. The sum due on the two notes not having been paid, appellee, on December 27, 1889, tendered to appellant all sums due thereon, inclusive of interest to that date, and demanded a deed, but appellant refused to receive the money or to make the conveyance, whereupon this suit was brought, and the money necessary to pay the principal and interest on the notes until time of tender, was offered in court. *Page 13
It appears that on the same day the title bond in question was executed, that T.M. Harwood, who was then the owner of the land, executed to appellant a bond to make title to him to the entire tracts of land of which that in controversy is an undivided one-half, in consideration of a cash payment then made and of other payments to be made in one and two years from that date. The cash payment thus made, as well as each of the notes executed by appellant to Harwood, were for just double the sum paid and to be paid by appellee to appellant, and appellee's evidence all tends to show that there was originally between them an agreement for the joint acquisition of the land.
On December 2, 1881, Harwood conveyed the land to appellant, and there is no evidence showing that appellant did any act showing an intention to refuse to carry out the contract on the ground that appellee did not pay the notes when they became due, and his defense was a claim that he never did execute the bond for title; but upon this issue the jury found against him on evidence amply sufficient to sustain the finding. Appellant also pleaded stale claim and the statutes of limitation of three, five, and ten years. The court sustained a demurrer to the plea asserting laches and seeking to set up the enhanced value of the land and other like matters in bar of the suit, and on the trial refused to hear any evidence under the pleas of limitation other than such as had bearing on the statutory bar for specific performance.
Appellant neither pleaded nor attempted to prove a demand for the purchase money, nor did he allege that the contract had been in any manner rescinded, and under this state of facts there was no error in the rulings of the court referred to.
If appellant desired to rescind the contract on account of the failure of appellee promptly to pay the purchase money when it became due, he should have taken steps looking to that end, and not having done so, he could not by lapse of time short of that prescribed by the statute as a bar to such actions defeat appellee's right to have the contract specifically performed. The statute provides that actions for specific performance of contracts to convey real estate shall be barred in ten years (Rev. Stats., art. 3209), and the defense of stale claim is no longer applicable to such contracts as come within the meaning of the statute; but were this otherwise, such a plea could not be sustained under the facts of this case, for under the former rules the claim would not be stale short of the period now fixed for the statutory bar. If the period when the last maturing of the notes executed by appellee became due or the date when Harwood conveyed to appellant be considered the date from which limitation would run, then in either case ten years had not elapsed after the cause of action accrued before this suit was commenced. It is too clear, in view of the relation of the parties created by the contract, that limitation based on three and five years had no application to the case. *Page 14
It seems to be contended that the statutory bar to actions for specific performance of contracts to convey real estate has no application to cases in which the land was not paid for strictly in compliance with the contract, but there is nothing in the statute which would justify such a construction. A vendor may compel the payment of the purchase money whenever it becomes due, or otherwise have the contract rescinded upon equitable terms; but he can not make his failure to do either of these things, or the failure of the vendee to pay at maturity, a ground for taking the case out of the statute or for making any other statute applicable to the case. That the purchase money was tendered was a fact conceded, and the court did not err, as the tender was continued, in ruling that interest did not run after tender was made.
The case was tried as upon an ordinary contract to convey land, and it is unnecessary to consider what would be the rights of the parties if the land was acquired by appellant under an agreement between him and appellee for the joint acquisition of the land.
We find no error, and the judgment will be affirmed.
Affirmed.
Delivered January 15, 1892.
A motion for rehearing was refused.