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The story is a little peculiar. If everything is now taken care of (banks, etc) why don't you just close tomorrow?
And if you still want to buy this place, what's the current delay?
In your original offer (the one that should have already closed) what does the fine print of the puchase and sale agreement say about delays that are out of your hands?
Do you still want to buy the property or not?
I'm sorry this isn't an immediate answer to your question. Sometimes I need more background information before I can properly respond.
I'll be waiting to hear from you.
If you very much want the property, give them the non-refundable money but make sure - absolutely sure - that it goes toward the purchase price, as another down payment. Tell them you can't meet with them until Monday afternoon, and you'll have it for them then.
They will have no remedies against you if the contract to buy excuses you from failing to close through no fault of your own. That's usually in the small print, but you need to check whether or not that was in the contract.
But you're right - specific performance would be the main remedy available. But they could also try to sell to someone else, and then you won't get the property you really want.
Does that help?
We can talk some more but I do want to let you know that I'll be taking my break in an hour or so and may not be back to read my email until Friday am (PST).
Jane Doe, Deer
The vendor can go to court for the purchase price, so your thought about specific performance was right. Most of the Arkansas cases are from the 1880's that I could find. Here are the annotations. Let me know if you want to see the full case on any of them:
[Cited 5 times for this legal issue]Anderson v. Mills, 28 Ark. 175400 VENDOR AND PURCHASER400VI Remedies of Vendor400VI(B) Actions for Purchase Money400k303 k. Conditions precedent.Ark.,1873Before the vendor can bring an action at law for the payment of the purchase money for lands, he must tender a deed in accordance with the covenants of his title bond and demand payment, but, in equity, the rule should not be applied with the same strictness as at law, and where it appears that the vendor, pending the suit, made tender of the deed in court, and the objection for the first time is made in this court that no deed was tendered before suit brought, such objection will not be cause for reversal of the decree or an order of dismissal. [Cited 4 times for this legal issue]McGehee v. Blackwell, 28 Ark. 27Ark.,1872While, in action at law for the purchase money due, where the consideration is the conveyance of the property sold upon payment of the purchase money, and the covenants between the parties are mutual and dependent, a deed should be tendered, and not merely offered to be tendered, before suit brought, yet in equitable proceedings, while the rule should ordinarily be observed, the chancellor may, when deemed promotive of the ends of justice, relax or altogether dispense with the rule. [Cited 3 times for this legal issue]Smith v. Henry, 7 Ark. 207Ark.,1846Upon agreements for the sale and purchase of lands where the stipulations of the parties are dependent, the vendor, to maintain an action against the vendee for the purchase money, must tender a conveyance and demand the purchase money. [Cited 2 times for this legal issue]Quetermous v. Hatfield, 14 S.W. 1096Ark.,1890A vendor of land, who agreed to deliver a bond for title upon payment of a certain note, cannot recover a judgment on such note without first making a tender of the bond for title. [Cited 2 times for this legal issue]Atkinson v. Hudson, 44 Ark. 192Ark.,1884Where the obligations of the vendor to make title and of the vendee to pay the purchase money for land are dependent, the vendor can not sue at law for the purchase price without first tendering to the purchaser a deed in conformity to the contract; but where the suit is in equity, tender before suit is not essential, but is sufficient if made with the bill. The Chancellor will then grant the proper relief to the plaintiff and relieve the defendant from cost which might not have been necessary if the tender had been made before suit. [Cited 2 times for this legal issue]Anderson v. Mills, 28 Ark. 175Ark.,1873While, in an action at law for the purchase money due, where the consideration is the conveyance of the property sold upon payment of the purchase money, and the convenants between the parties are mutual and dependent, a deed should be tendered, and not merely offered to be tendered, before suit brought, yet, in equitable proceedings, while the rule should ordinarily be observed, the chancellor may, when deemed promotive of the ends of justice, relax or altogether dispense with it. [Cited 2 times for this legal issue]Lewis v. Davis, 21 Ark. 235Ark.,1860Where, on a verbal contract for the sale of land, the vendor assigned to the vendees a title bond thereof, and agreed to make or cause to be made to them, within one month, a good title to the land, and the vendees paid a part of the consideration in money, and gave their notes for the remainder, held, that the making of the title was a condition precedent to the plaintiff's right to recover in an action upon the notes. [Cited 2 times for this legal issue]Smith v. Henry, 7 Ark. 207Ark.,1846The principle decided in Byers & Minniken vs. Aiken, 5 Ark.R. 419, and Drennen vs. Boyer & Clark, ib. 497, that "in an action for the purchase money, a plea alleging that the plaintiff refused to execute a conveyance according to the agreement is bad, if it does not aver that a deed was tendered by the purchaser to the vendor and he refused to execute it, or that the vendor took upon himself to prepare the deed and he afterwards refused to execute," overruled. [Cited 2 times for this legal issue]Mayers v. Rogers, 5 Ark. 417Ark.,1844Under a contract clearly expressing the intention that payment of the price of land shall precede the conveyance, an action for the price may be brought without a conveyance or tender thereof. [Cited 1 time for this legal issue]McConnell v. Little, 11 S.W. 371Ark.,1889In an action for the balance of purchase price under a contract by which plaintiffs agreed for a certain sum to procure a conveyance of certain lots from the owner to defendant, there can be no recovery when it appears that plaintiffs gave defendant, before the last installment of the price was due, a deed conveying different lots, though defendant, in ignorance of the fact that the deed did not convey the property purchased, accepted it without objection, as the conveyance of the proper lots was a condition precedent to the right to the purchase money. [Cited 1 time for this legal issue]Rudd v. Savelli, 44 Ark. 145Ark.,1884A vendor of land by title bond cannot have relief for the purchase money, where the payment of it and the making of title are to be concomitant acts, or where the execution of the conveyance is to precede the payment, unless before suit, or, at farthest, at the time of the decree, he shows himself able and willing to execute a warranty deed and tenders one. [Cited 1 time for this legal issue]Ex parte Hodges, 24 Ark. 197Ark.,1866A vendor who comes into a court of equity to enforce the execution of a contract for the sale of lands, should tender a perfect and unincumbered title; at all events, such a title as he contracted to make. [Cited 1 time for this legal issue]Miller v. Wood, 23 Ark. 546Ark.,1861A plea that the only consideration of a note was an agreement, signed and sealed by the plaintiff and her testator, to sell and deliver to the defendant their possession as occupants of certain land and their improvements thereon, and alleging that such possession, etc., had not been delivered contains good matter of defense to a suit upon the note. [Cited 1 time for this legal issue]Mayers v. Rogers, 5 Ark. 417Ark.,1844R. by covenant sold, and agreed to convey to M. a town lot, provided M. should first pay him the full amount of the purchase money, for which M. had executed his bonds-M. cannot urge, as a defense, in an action on the bonds, for the purchase money, that the conveyance has not been made or tendered. The covenants are independent. [Cited 0 times for this legal issue]Bryan v. Bishop, 302 S.W.2d 524Ark.,1957Where purchaser took possession of realty under contract of sale and continued to collect rents thereon, but refused to make monthly payments on purchase price required by contract, vendor was not required to tender deed as a prerequisite to recovery of unpaid balance of purchase price. [Cited 0 times for this legal issue]Letchworth v. Vaughan, 90 S.W. 1001Ark.,1905Where a contract for the sale of lands provided that the vendor should, within a certain period of time, furnish "a perfect or satisfactory title" to the lands, and that half of the purchase money should be retained until the title of the land should be perfected, and that, in the event of the failure of the vendor to perfect the title within time mentioned, sum retained should be forfeited to the vendee, the vendor is entitled to recover the remainder of the purchase money whenever he furnishes a title which the vendee agrees to accept as satisfactory. [Cited 0 times for this legal issue]McConnell v. Little, 11 S.W. 371Ark.,1889The plaintiff sold the defendant certain town lots and received from him all the purchase money except $100, the payment of which was by agreement deferred until after the execution of a deed for the lots which the plaintiff undertook to procure from M., who owned the property and had authorized the sale. Before the residue of the purchase money was due the plaintiff obtained a deed executed by M., and delivered it to the defendant who received it without objection, but on examination made sometime after its delivery, discovered that it did not convey any part of either of the lots he had purchased. When payment of the $100 was demanded the defendant refused to make it until he received a conveyance for the lots he had purchased. Held: That the plaintiffs were not entitled to recover the $100 until they procured according to their agreement, the conveyance of the lots purchased, which was a condition precedent to its payment. [Cited 0 times for this legal issue]Atkinson v. Hudson, 44 Ark. 192Ark.,1884Where the duty of the vendor to make title and that of the vendee to pay the price are mutual and dependent, the vendor need not tender title before he can bring suit to enforce payment of the price, a tender in the bill being sufficient. [Cited 0 times for this legal issue]Price v. Sanders, 39 Ark. 306Ark.,1882A vendor of land by title bond, conditioned to convey upon payment of the purchase-money, is not entitled to a personal judgment against the vendee for the purchase-money, without first tendering him a deed for the land. [Cited 0 times for this legal issue]Price v. Sanders, 39 Ark. 306Ark.,1882To an action on a note given for the purchase money of land, where a title bond has been given conditioned to convey on payment of the price, a failure to tender a deed is a defense. [Cited 0 times for this legal issue]Sorrells v. McHenry, 38 Ark. 127Ark.,1881A vendor cannot maintain an action at law for the purchase money unless he has tendered a deed and demanded the purchase money before suit, provided the stipulations of the vendor and vendee are dependent. [Cited 0 times for this legal issue]Sorrells v. McHenry, 38 Ark. 127Ark.,1881Where in a contract for the sale of land, the agreements of the vendor to make title and the vendee to pay the purchase money are dependent, the vendor cannot sue at law for the purchase money, without first tendering the deed and demanding the purchase money; but the rule is otherwise in equity where costs are under the control of the chancellor. [Cited 0 times for this legal issue]Wakefield v. Johnson, 26 Ark. 506Ark.,1871Where vendor wants the purchase money, the deed should be tendered before filing a bill; and where vendee wants a deed, the purchase money should be tendered before filing a bill.[Cited 0 times for this legal issue]Willis v. Johnson, 26 Ark. 510Ark.,1871Where vendor wants purchase money, deed should be tendered before filing bill, and where purchaser wants deed, purchase money should be tendered before filing bill. [Cited 0 times for this legal issue]Busby v. Treadwell, 24 Ark. 456Ark.,1866A vendee having given his note for certain lands to be paid on a day certain, provided that if the lands were involved in suit concerning the title to the same, payment was not to be made until the suit should be decided; there being no suit pending, at the time of the coming to maturity of the note, involving the title to the lands so sold, the vendor's right of action was complete. [Cited 0 times for this legal issue]Thomas v. Lanier, 23 Ark. 639Ark.,1861The stipulation, on a sale of land, to make title, and the undertaking to pay the purchase money, stand on the same legal footing; and where the one is a condition precedent to the other, and the time but not the place of performance is fixed, the vendor must seek the vendee, if within the State, but if he be absent, the vendor may proceed by attachment for the purchase money without first offering to make title. [Cited 0 times for this legal issue]Smith v. Henry, 7 Ark. 207Ark.,1846In an action for the purchase money of land on an agreement of sale, the vendor must allege and prove a tender of a deed of conveyance and a demand of the price; and this, although the contract for the price has been assigned, and though the contract rests in parol. [Cited 0 times for this legal issue]Sayre v. Craig, 4 Ark. 10Ark.,1842Where plaintiff covenants with defendant to convey land to him by a deed in fee simple, and in consideration thereof defendant convenants to pay a certain sum of money on a future day specified, and to give bills of exchange for the amount payable at such time as described, and plaintiff is to deliver possession at a day certain before such day of payment, plaintiff may maintain an action against defendant on his covenant without averring performance or his readiness to perform.
Which case? And will that be your last follow-up question?
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