HILLSBOROUGH COUNTY.
CUSHING, C.J.
It appears, from the first report of the master, that the defendant, when he sold the property, believed he had a title to it by sale for taxes, but that soon after giving the bond he had reason to suspect that his title was not good, and that before the bond matured he became certain of it, and that this was the reason of his unwillingness to complete the transaction by giving a deed. This relieves the defendant from the suspicion of intentional fraud, but it does not entitle him to any of that charitable consideration which a court of equity might perhaps have extended to him had he not attempted to avoid his contract by indirect practices.
The bond matured October 2, 1870, and the master has made his report of certain rents, and expenses, and interest account up to that time. If the master's report had been made on investigations directed by the court, according to any intimations of their views about the damages, I should not be inclined to question the judgment so far as it as gone. I cannot, myself, take any view of the case which makes those investigation, material.
The plaintiff does not stand here in any other light than as a man able and willing to perform his contract exactly to the letter. He is not obliged to ask the charitable consideration of the court in any particular. It is therefore just and equitable that he should be placed by the judgment of the court in exactly the same position — neither better nor worse than he would have been in had the defendant performed his contract.
If the defendant had performed his contract, the plaintiff would have been in undisturbed possession all the time. He would have paid $800 for the property; he would have laid out certain sums in repairs and improvements, and received the rents; and the net balance, after deducting the interest on the purchase-money, would have been his profit, to which he was fairly entitled.
It is not made to appear affirmatively that the plaintiff, in keeping his tender good, lost the interest of his money; so that I think it is right that he should allow this interest up to the time of the maturity of the bond.
The plaintiff paid, April 26, 1873, to the actual owners of the property, the sum of $800, — i. e., the $500 which he was to have paid the defendant for the purchase-money, and $300 more. As he did not pay this till April 26, 1873, and meanwhile had the use of the property, I think the defendant ought to have the benefit of the interest on this sum from the maturity of the bond to the time of payment. Two hundred and sixty dollars, at 6 per cent. interest from October 2, 1870, to April 26, 1873, would amount to $300, so that $260 should be set down as the damage to be reckoned October 2, 1870, for being obliged to pay $300 April 26, 1873.
In the same manner $433.27, with interest at 6 per cent. from October 2, 1870, to April 26, 1873, would amount to $500, and the difference between these two sums $66.73, is the interest which should be allowed on the $500. The account then would stand thus:
The defendant is charged as follows:
Amount paid by the plaintiff over and above the contract price, reckoned as of October 2, 1870, $260.00 Cost of first suit, 49.21 Cost of suit in police court, 10.00 Rent collected by defendant while in possession, with interest to October 2, 1870, 82.33 ------- $401.54
Defendant is to be credited with simple interest on $500, 5 years, to October 2, 1870, 150.00 Discount on $500 from October 2, 1870, to April 26, 1873, 66.73 216.73 ------- Damage as of October 2, 1870, $184.81 To this add interest from October 2, 1870, to the date of this judgment, March 22, 1876, 60.67 Add counsel fees as found by the master, 156.75 ------- $402.23
There is nothing in the master's report to show when the expenses of the first suit, and of the suit in the police court, were paid, and therefore nothing by which to reckon interest.
As the plaintiff had to make his tenders regularly until the maturity of the bond, I think he ought not to allow anything more than simple interest.
LADD and SMITH, JJ., concurred.
Decree accordingly.