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ANKENY V. CLARK, 148 U. S. 345 (1893)

U.S. Supreme Court

Ankeny v. Clark, 148 U.S. 345 (1893)

Ankeny v. Clark

No. 64

Argued December 21-22, 1892

Decided March 27, 1893

148 U.S. 345


When one party to a special contract not under seal refuses to perform his side of the contract or disables himself from performing it by his own act, the other party has thereupon a right to elect to rescind it, and may, on doing so, immediately sue on a quantum meruit for anything he had done under it previously to the rescission.

This doctrine was supported by the Supreme Court of the Territory of Washington in this case, and is now sustained by this Court notwithstanding the decision of the Supreme Court of the State of Washington in Distler v. Dabney, 23 N.W. 335, construing the code of that state adversely to it.

Stutsman County v. Wallace, 142 U. S. 293, explained and distinguished from this case.

Judgments of territorial Courts in mere matters of procedure are not subject

Page 148 U. S. 346

to reversal because of decisions made in subsequent cases by the courts of the state, after its admission, while the former cases were pending on appeal in this Court.

Defects in the pleadings in this case, if any, not having been questions below, cannot operate here to invalidate the trial there.

A title derived from a land grant railroad company which has not received a patent, by reason of failure to pay the costs of surveying, is not a title which a party who has contracted for a deed of the land and has paid the purchase price therefor, is obliged to accept.

When a contract is entered into to convey and to purchase a tract of land, and title fails as to part of it, the purchaser may rescind the contract as to all.

When part of a contract of purchase of land is that the purchaser shall assume and pay a mortgage thereon, if the title to a part of it fails, he may rescind the contract without paying the mortgage.

When a contract to convey land permits the purchaser to enter and occupy, and he does so and makes the payments prescribed by the contract, and the seller fails to convey by the agreed title, the seller cannot, in an action by the purchaser to recover back the purchase money, set up as an offset a claim for the rent of the land during the buyer's occupancy.

It appears from the record in this case that on October 20, 1882 at Walla Walla, in Washington Territory, Levi Ankeny, the plaintiff in error, entered into a contract with Van Buren Clark, the defendant in error, by which Ankeny agreed to sell and convey to Clark two quarter sections of land in Walla Walla County, in consideration of 12,000 bushels of wheat, to be delivered in three annual installments of 4,000 bushels each, and of the assumption by Clark of a mortgage of $3,000 on the land. This contract was evidenced by three written instruments as follows:

1. A bond from Ankeny to Clark in the penal sum of $10,000, conditioned to convey the land to Clark upon his paying the consideration according to agreement.

2. A "wheat note" from Clark to Ankeny, which reads as follows:

"Walla Walla, W.T., Oct. 20, 1882"

"For value received I promise to pay to Levi Ankeny, or order, twelve thousand (12,000) bushels of good, merchantable wheat, said wheat to be delivered to the owner of this note at any railroad station in Walla Walla County, Washington Ty.,

Page 148 U. S. 347

and payments to be made as follows: on or before Oct. 15th, 1883, four thousand (4,000) bushels; on or before Oct. 15th, 1884, four thousand (4,000) bushels, and on or before Oct. 15th, 1885, four thousand (4,000) bushels, the owner of this note to furnish sacks for said wheat."

3. A chattel mortgage from Clark to Ankeny to secure the payment of the wheat note.

Under this agreement, Clark entered into possession of the land, and continued in possession of it until the fall of 1886.

In performance of this contract, Clark, in December, 1883, delivered to Ankeny 4,167 bushels of wheat, and in September, 1885, he delivered 8,600 bushels, making 767 bushels more than the contract called for. Ankeny accepted this wheat in fulfillment of the contract.

After the delivery of the wheat to Ankeny, Clark demanded a deed for the land. This Ankeny neglected to give, putting Clark off from time to time upon one pretext or another, until Clark, becoming impatient, finally insisted either upon a deed to the land or payment for his wheat. Clark was then referred by Ankeny to the latter's attorneys, who informed him that he could have a warranty deed to the quarter on the even section and a quitclaim deed to the quarter on the odd section, or the "railroad land," as it was called, and they further informed him that if the Northern Pacific Railroad Company should not get title to the odd section, and he should be obliged to procure title from the government, Ankeny would pay the necessary expenses of obtaining title in that way. This does not seem to have satisfied Clark, and on November 16, 1886, he served upon Ankeny the following notice:

"Walla Walla, W. T., Nov. 16, 1886"

"Levi Ankeny, Esq., Walla Walla, W.T."

"Dear Sir: I have performed my part of the contract in the purchase of the land described in your bond to me. I have learned that you have no title to one hundred and sixty acres of it. You have refused to give me anything more than a quitclaim deed to this part of the land. I cannot accept

Page 148 U. S. 348

such a deed. It was not what the contract called for. Unless within five days from this date you convey a perfect title to me to the whole of the land described in the bond by a good and sufficient conveyance, I will at the end of that time abandon this land and surrender the possession to you, and look to you for such compensation as the law allows me on account of violation of the contract."


"V. B. Clark"

Ankeny seems to have paid no attention to this notice, and Clark, several days thereafter, taking a witness with him, went to Ankeny's bank and formally surrendered possession of the land to Ankeny. Clark then abandoned possession of the land, and has not occupied it since.

Subsequently to all this, and on the 19th day of March, 1887, Clark brought this action in the district court of the first district to recover from Ankeny the value of 12,767 bushels of wheat delivered under the contract. The case was tried before a jury, who, upon the direction of the court, brought in a verdict for the plaintiff, and judgment was given upon the verdict.

The defendant took the case in error to the Supreme Court of the Territory of Washington, which affirmed the judgment of the district court. The case is now before this Court on error to the Supreme Court of the Territory of Washington.

Page 148 U. S. 351

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