In maintaining such action, however, he must keep his tender open with a deposit of the deed in court so that in the event of a favorable judgment the vendee may have conveyance of the property immediately upon satisfaction of the judgment. See, Amaranth Land Co. v. Corey, 182 Cal. 66, 186 P. 765; Morris v. McKee, 96 Ga. 611, 24 S.E. 142; Smith v. Independent School District, 48 Idaho 295, 282 P. 84; Thurman v. Alcott, 235 Ill. App. 545; St. John v. Richard, 272 Mich. 670, 262 N.W. 437; Hodges v. Moore, 102 Miss. 532, 59 So. 827; Olmstead v. Smith, 87 Mo., 602; Corby v. Ward, 112 N.J. Law, 489, 171 A. 813; Ewing v. Wightman, 167 N.Y. 107, 60 N.E. 322; Paschal v. Brandon, 79 N.C. 504; Dubois v. Andrews, 57 Okl., 227, 152 P. 440; McClenachan v. Malis, 310 Pa. 99, 164 A. 780; Heights Land Co. v. Swengel's Estate, 319 Pa. 298, 179 A. 431; Phillips v. The Maccabees (Tex.Civ.App.), 50 S.W.2d 478; Stevens v. Irwin, 132 Wn. 289, 231 P. 783; Oconto County v. Bacon, 181 Wis. 538, 195 N.W. 412, 40 A. L. R., 175; 66 Corpus Juris, 1206, Section 1069, and 1356, Section 1357. As pointed out in Hodges v. Moore, supra ( 102 Miss. 532, 59 So. 827, 828), the latter rule removes any possibility that the vendor will retain title to the property after payment of the purchase price by the vendee.
In Walsh v. Coghlan, 33 Idaho 115, 190 P. 252, it was held: "A vendor who retains title to real property as security for the payment of the purchase price which, according to the contract of sale, was to be paid in installments, whereupon he was to convey the property to the vendee and furnish an abstract showing clear title, is not in position, when all unpaid installments are due, to demand a forfeiture of the vendee's interest, or to maintain an action for the purchase price, without tendering the deed and abstract." Dubois v. Andrews, 57 Okl., 227, 152 P. 440, is a direct authority to the effect that the covenants in this case are mutual and dependent. It holds as follows in the syllabus: "Where a contract is made to convey land upon payment of the purchase money, the covenant to convey and the one to pay are mutual, dependent covenants, and after the entire purchase money is due, an action to recover it cannot be maintained unless the plaintiff offers to convey or tenders a deed for the land upon full payment of the purchase price." There is some conflict in the decisions upon the question whether the covenants are dependent or independent.
Joiner v. Ardmore Loan Trust Co., 33 Okla. 266, 124 P. 1073; Pugh v. Stigler, 21 Okla. 854, 97 P. 566; Herron v. Harbour, 57 Okla. 71, 155 P. 506. It was also held in Dubois v. Andrews, 57 Okla. 227, 152 P. 440, that where a contract is made to convey upon payment of purchase price, the covenant to pay and to convey are mutual, dependent covenants, and no action for the price can be maintained unless the seller tenders a conveyance. All the dealings between the parties had to do with a block of leases, definitely described, for a particular price, consisting of 1,280 acres, and the defendants were under no legal obligation to accept a materially less quantity of acreage than that agreed to be sold them.
The assignors could not have recovered upon the writing without pleading and proving an acceptance thereof and a compliance with its terms, or at least tendered compliance in the petition. Dubois v. Andrews, 57 Okla. 227, 152 P. 440; 4 Ency Pl. Pr. 635; Graves et al. v. Chambers, 110 Okla. 1, 236 P. 25. The offer of March 7, 1921, never having become a binding contract between A.D. Curtis, Julia C. Morgan, and the defendant, the plaintiff took nothing by the assignment thereof. St. Louis Smelting Refining Co. v. Nix, 101 Okla. 197, 224 P. 982.
"Where a contract is made to convey land upon payment of the purchase money, the covenant to convey and the one to pay are mutual, dependent covenants, and after the entire purchase money is due an action to recover it cannot be maintained unless the plaintiff offers to convey or tenders a deed for the land upon full payment of the purchase price." Dubois v. Andrews, 57 Okla. 227, 152 P. 440. "When mutual covenants go to the whole consideration on both sides, they are dependent conditions, and performance must be averred, in an action by either party for a breach, or, instead, an offer of performance may be alleged, and at least a readiness to perform must be shown by the party seeking to enforce performance."
"(7) The court committed other errors prejudicial to the rights of plaintiffs in error which are apparent on the face of the record." The plaintiff in error in discussing his several assignments of error contends, first, that the petition fails to state a cause of action, and that demurrer thereto should have been sustained on the ground that this is an action for the rescission and cancellation of a written instrument, and that there is no allegation of an offer to return the consideration admittedly paid by the plaintiff in error, and on this proposition cites numerous authorities from the Supreme Court of Oklahoma, among which are the following: Stowe v. Martin, 23 Okla. 561, 102 P. 128; Pugh v. Stigler, 21 Okla. 854, 97 P. 566; Dubois v. Andrews, 57 Okla. 227, 152 P. 440; Freeman v. Camp, 53 Okla. 385, 156 P. 1193; Herron v. Harbour, 57 Okla. 71, 155 P. 506; Myler v. Fed. Mut. Ins. Co., 64 Okla. 293, 167 P. 601; Trimble v. Minn. Thr. Co., 10 Okla. 578, 64 P. 8; Mosier v. Walter, 17 Okla. 305. 87 P. 877; 4 R. C. L., section 5, page 490; 9 C. J., section 27, page 1172; 9 C. J., section 208, page 1260, and cases cited, note 96; Jeffers v. Forbes, 28 Kan. 174; Neal v. Reynolds, 38 Kan. 432, 16 P. 785. Counsel also insists that the defendants in error are estopped by their conduct, and quotes from the testimony of Diah S. Pratt in support of the proposition of estoppel, and insists that inasmuch as Clark did not sell the 40 acres to Prentice until the 8th day of April, 1918, that all of those transactions were matters of proper record, and that Pratt could have known it if he had used proper diligence.
These facts were pleaded in the answer, and evidence was offered to show that fact, and instructions were requested upon that theory which were refused. At the close of all the evidence defendant requested an instructed verdict in his favor. In Dubois v. Andrews, 57 Okla. 227, 152 P. 440, it was held that where a contract is made to convey land upon payment of the purchase money, the covenant to convey and the one to pay are mutual, dependent covenants, and after the entire purchase money is due an action to recover it cannot be maintained, unless the plaintiff offers to convey or tenders a deed for the land upon full payment of the purchase price. In Miller v. McDonald, 63 Okla. 167, 163 P. 533, a similar question was involved, and it was there held that where a party in consideration of a certain cash payment and a certain sum to be paid within one year after date contracts to convey land upon payment of the last mentioned sum, at which time the purchaser was to execute and deliver a note and mortgage for the balance of the purchase price, the covenant to execute note and mortgage and the one to convey were mutual, dependent covenants, and the grantor was not entitled to interest upon the amount for which the note and mortgage were to be executed, unless he had com
The principle here is similar to that where a contract is made to convey land upon payment of the purchase money, in which case it is held that the covenant to convey and the one to pay are mutual, dependent covenants, and that after the entire purchase money is due, an action to recover cannot be maintained unless the plaintiff offers to convey or tenders a deed for the land upon full payment of the purchase price. Dubois v. Andrews, 57 Okla. 227, 152 P. 440; Morrison v. Terrell, 27 Kan. 326. In Craft v. Bent, 8 Kan. 328, the parties entered into a contract by which defendant sold to plaintiffs a certain tract of land and bound himself to convey the same, "by a good and sufficient deed of warranty," on or before a certain date.
At the conclusion of the evidence, at the direction of the court, the jury returned its verdict for plaintiff in the amount sued for, and judgment was entered thereon, to reverse which this proceeding in error is prosecuted. Plaintiff did not offer to convey nor tender a deed before bringing suit upon the purchase note, and defendant contends that, having failed to do either, the action was premature, and relies chiefly upon the case of Dubois v. Andrews, 57 Okla. 227, 152 P. 440, to sustain his contention. The contract in the instant case provides for the payment of the purchase note within a year, but fixes no time for conveyance, nor does it provide for a conveyance at all.
" The following cases cited by counsel for plaintiff in error construing this statute also seem reasonably to sustain this assignment of error: Howe v. Martin, 23 Okla. 561, 102 P. 128, 138 Am. St. Rep. 840; Pugh v. Stigler, 21 Okla. 854, 97 P. 566; Dubois v. Andrews, 152 P. 440, not yet officially reported. For the reason stated, the judgment of the court below must be reversed, and the cause remanded, with directions to proceed in accordance with the views herein expressed.