The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 36
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250 FEDERAL REPORTER
manded." Whenever, by payment on the part of the vendee (pur-
chaser) under the deed, the amount unpaid was reduced, a new status
resulted, and each subpurchaser's "pro rata" on his land was corre-
spondingly reduced. The provision was made for the benefit of each
subpurchaser, and, whenever any right arose to him by virtue of any
payment made, no action on the part of the vendee (purchaser) from
whom he bought, or on the part of the plaintiff, could injuriously affect
The evidence indicates that releases were made upon such a basis
that, if all of the acreage had been released on the same basis, the pay-
ments for releases would have been insufficient to have discharged the
entire indebtedness. The seller of the land, the plaintiff, had, of course,
the right to release any tract that he might choose to release; and if,
as was the case, his vendee joined in the request for the release at this
inadequate price, both of the parties would be bound by the action, and
the release would be in all respects effective. This, not by virtue of
the contract, but because the vendor would have a right, notwithstand-
ing the contract, to give away his property if he wanted to. Such a
release, however, could not have the effect of placing a subpurchaser
in a less favorable position than prior to such release. If, to illustrate,
there had been outstanding so much of the unpaid purchase price as
would have required a payment of $3 per acre for its discharge, and
the plaintiff, at the request of his vendee, had released certain of the
lands at $2 per acre, whereby there would be due upon what was left
a larger amount than $3 per acre, subpurchasers, whose rights had been
fixed prior to that time, would nevertheless have the right, by paying
the $3 an acre, to secure releases.
It is insisted by appellants that the course of conduct between the
plaintiff and the purchaser in the giving of releases to a number of the
subpurchasers at $1.90 and less created a condition which authorized
other subpurchasers to secure releases for like amounts. As suggested,
the limit of the restriction upon the plaintiff was that he could not exe-
cute a release that would injuriously affect persons whose rights had al-
ready been fixed. He did not, by taking less than he had a right to
demand, do anything that he did not have a right to do. But this
action on his part could not take away rights which had already been
fixed in other people, nor did it give them new rights. The clause
was executed for the purpose of making it practicable for the vendee
(purchaser) to resell the land, by making it possible to give good titles
to the subpurchaser, without taking up the notes executed for the pur-
chase price before they were due. If a construction is given to it
which would authorize the plaintiff, the original vendor, to accept re-
leases for an amount less than he had a right to demand, with the ef-
fect of adding this deficit to the amount which subpurchasers subse-
quently demanding releases would have to pay, the value of the clause
would be entirely destroyed.
The actual course of events in this case illustrates, as well as any
facts which might be imagined, the effect of such a construction. The
evidence shows that releases were accepted as low as $1.63 per acre.
At a subsequent date, and at a time when the appellants in this case
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/51/: accessed April 28, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.