175 Ky. 718 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
On March. 27,1905, appellants, W. W. Cornett and M. J. Cornett, his wife, executed and delivered to appellee, Kentucky Kiver Coal Company, a contract for the sale of a tract of land on Clover Fork of Big Leatherwood Creek of the north fork of the Kentucky Kiver, in Perry county, and containing “about 560 acres from estimation.” This contract was recorded in the office of the clerk of the Perry county court on July 18, 1905. The contract contained a provision that appellee was to pay appellants for the land $6.50 per acre, $25.00 of which was paid when the contract was executed, and the balance was to be paid within twelve months from that date, “when the amount thereof is ascertained as hereinafter stated. ’ ’ The stipulation as to how and when the balance of the contract price was to be paid is as follows:
“Before payment of said deferred consideration cah be demanded by the grantor as a matter of strict right,*720 the number of acres in said boundary is to be determined by actual survey made by and under the direction of a competent civil engineer at the expense of grantee, and grantor shall furnish a complete abstract showing title in him and thereupon convey to grantee by deed containing covenants of general warranty, etc.”
Seeking to enforce a specific performance of this contract, appellee filed this action against appellants on the 18th day of October, 1910, alleging in the petition, after setting up the contract, that it had caused to be made by a competent surveyor a survey of the land described in the contract and ascertained thereby the actual number of acres to be-acres; that appellant, W. W. Cornett, accompanied the surveyor over and around the marked boundary lines, but, for the purpose of avoiding the contract, objected to the number of acres ascertained, and claimed that the survey was incorrect; that appellee then sent other surveyors upon the land and had it resurveyed, obtaining the same results as before, and that appellants still refused and failed to convey the land to appellee, and have, at all times, refused to furnish appellee with the evidences of their title, or an abstract thereof, and had evaded plaintiff and its employes and recently absolutely refused and failed to convey to it said land, and plaintiff had been, at all times since the execution of the contract, ready, willing and able to pay for the land according to the contract.
To that tho defendants made answer, traversing the. allegations of the petition; in the second paragraph, pleaded that the contract was obtained by misrepresentation and fraud; that the contract actually made an option for twelve months and not a contract of sale; and, in a third paragraph, alleged that the contract should not be enforced because it was a chancing bargain, unconscionable and inequitable, because the plaintiff has a superior knowledge of the present and probable future values of the land, and with this superior knowledge, failed and refused, for a period of more than five years from the date of the writing, to do any act tending toward a performance of the stipulations thereof. That appellee was at all times insolvent and did not execute the contract with any intention of taking the land except in the event that its salable value should materially increase.
Appellee, by réply, traversed the affirmative allegations of the answer, and, in a separate paragraph, pleaded that appellants were estopped from asserting fraud in
Appellants filed a rejoinder traversing the affirmative allegations of the reply, thus completing the issues.
"We deem it necessary to the decision of the case to consider the following propositions: First, whether or not the contract was vitiated by fraud on the part of appellee in its execution; second, whether or not a specific performance was warranted upon the facts proven; and, third, whether or not the judgment rendered is correct in the terms upon which the contract was ordered performed.
1. It is admitted by counsel for appellants that the contract is, in form, a contract for the absolute sale of the land described and not an option, but it is insisted that as a result of fraud practiced by the agent of appellee, who acted for it in the execution of the contract, the writing signed is not their true contract in that it is an absolute contract for the sale rather than an option; that before the writing was signed, the agent for appellee, who had prepared it, professed to read it to appellants, but did not read it correctly; that provisions agreed upon making it void upon the failure of appellee to exercise its option to buy within a year were fraudulently omitted from the writing, but that the writing, before it was signed by appellants, was read to them by the agent of appellee as though it included these provisions. In support of this contention appellants introduced the appellant, W. "W. Cornett, P. C. Hall, and W. E. Halcomb, each of whom testified that the contract, as verbally made by the parties, and as read by appellee’s agent, contained a provision of forfeiture that would have made it an option rather than a contract of sale. The agent of appellee, denied this testimony of appellant’s witnesses and alleged that the contract, as signed, truthfully recorded the contract as made and as read by him to appellants before its execution. These are the only witnesses who were present at the execution of the contract, and upon this evidence counsel for appellants earnestly insist that the fraud alleged is established, since three witnesses testify to the fraud which is denied by only one witness.
At no time until he filed his answer did he even intimate to appellee or any of its agents, in any of these frequent conversations, that there was any reason why he would not comply with his contract except that he was dissatisfied with the surveys made. He states that he assisted Mr. Ward, the first surveyor sent by appellee to survey the land, in locating the corners; that he knew the twelve months had elapsed at that time and that he was then willing to convey the land; that the only reason he gave for not then conveying it was he thought there was a larger acreage than shown by the survey. While he was having appellee, at great expense, make these several surveys upon the representation that he was not satisfied with the number of acres found by the surveyor, his true reason for not making the conveyance is no doubt disclosed in the following question and answer:
“Q. If I understand you, the thing that stood in the way of agreement between you and Mr. Harvey and his company was the matter of acreage of the land; is that correct? A. Well, that is one reason, and some other reasons; the lands had advanced in value, and I had been offered more for the land than they was proposing to pay.”
In order to be able to avail himself of fraud in the execution of the contract, the party attempting its avoidance must proceed within a reasonable time and must not have ratified the contract after he has discovered, or could have discovered by the exercise of diligence, the existence of the fraud. Appellant is presumed to have known the contents of the writing at least after its recordation in July, 1905. He never did repudiate it until after he was sued to enforce it, but, upon the other hand, after the expiration of the contract he claims to have made, he was encouraging appellee to make, and was assisting it in making, several surveys at an expense to it of probably'$250.00 or $300.00, as shown by the evidence, in the belief that he understood and was going to comply with his obligations as expressed in the contract as executed. His actions were clearly such a ratification of the contract as to estop him from relying upon any infirmity in the execution of it. Golden v. Cornett, et al., 154 Ky. 438; Tennis Coal Co. v. Asher and Hensley, 143 Ky. 223; Fletcher, &c., v. Wireman, 152 Ky. 565; Pomeroy on Equity Jurisprudence, vol. 2, sections 916, 964, and 965; Culton v. Asher, et al., 149 Ky. 659; Bispham on Equity, section 260.
2. Counsel for appellants insist that even though it should be held that the contract was not vitiated by fraud in its execution, a specific performance of it ought not to be ordered because the contract was oppressive and unconscionable and not entered into by appellee with'
“The principles by which courts of equity are guided in respect to such, are well established. The right to specific performance is not absolute, but rests in judicial discretion, a sound judicial discretion — not an arbitrary discretion, but sound, judicial discretion, controlled by established principles of equity, and exercised upon the consideration of all the circumstances of each particular case. ’ ’
We apprehend that there can be no objection to the above statement of the rule. The case at bar shows that the parties were dealing at arm’s length; that the price to be paid for the land was as high, if not higher, than that being paid for similar land in that vicinity at that time. ■ Appellant is shown to, have been thoroughly competent to take care of himself in such a transaction; that the delay in performance by appellee was the result, upon its part, of attempting to satisfy appellants as to the correctness of its survey. Appellant, never, at anytime, attempted to have a survey made for himself, nor did he ever tender a conveyance or seek, in any way, an enforcement of the contract. It is shown in the evidence that under similar contracts appellee, through its assignees, took up and paid for many thousands of acres of land in the same neighborhood, and that it never defaulted upon any of its contracts. We are, therefore, convinced that under all the circumstances of this particular case, the chancellor did not abuse a sound judicial discretion in ordering a specific performance of the contract.
8. The first objection to the manner of performance ordered is that, by the contract, the walnut trees upon the land were excepted from the contract and that the judgment did not give effect to this exception, but ordered a conveyance of the land without reference thereto. This question was not an issue and did not arise in the lower
The other objection urged to the manner of the performance is that the court erred in adjudging the boundary to be conveyed. Appellant contends that the proper location of the land covered by the 500-acre patent issued to Robert Cornett April 21, 1849, under which he holds title, includes 918 acres, while under the construction contended for by appellee and adopted by the court, it is held to include only 590 acres, of which, however, under either construction, 247 acres in Leslie county, is to be excluded as not covered by the contract, leaving to be conveyed, under the contract, if. appellant’s construction of the patent is correct, 671 acres, but only 343 acres under the construction advanced by appellee' and adopted by the court. This difference in the location of the boundary results from the fact that the last six calls in the patent do not call for any established object, and that if run by the courses and distances, the patent will not close. There are thirteen lines called for in the patent, the first seven of which are located by marked trees and about the location of which there is no dispute affecting this controversy. However, in running the call between the sixth and seventh corners in the patent, it was found necessary to extend the line approximately eighty poles beyond the distance called for in order to reach the timber which it is agreed marks the seventh corner, and that this error in the recorded distance of this line is responsible for the failure of the patent to close, is the contention of appellant, who also claims that the effect of this error is compensated for and adjusted by extending the distances called for on the courses given in the last two lines of the boundary until they will intersect. This theory is;
It has long,been the rule in attempting to locate lost lines to give preference to the courses rather than to the distances, and to close the survey; if possible, by lengthening or shortening the distances rather than changing the courses, but in so -doing the error in distances must be reasonable and should be apportioned to all of' the lost' lines rather than arbitrarily placing it in only'some of them. This-rule of sacrificing distances to courses is only a general. ■ rule and is subject to many exceptions, where, from the evidence of a particular case, some other more satisfactory method of adjusting the error is disclosed. This- rule was first announced in Beckley v.
There is no hard and fast rule for closing a survey, but such rules as are employed are but rules of construction in aid of an effort to relocate lost lines as they were located in the original survey, which is always the problem for solution, and rules of construction must give way to competent evidence disproving their applicability to a given case.
Two rules of construction often recognized and applicable here are that reversing calls is as lawful and pursuasive as following their order — Pearson v. Baker, 4 Dana 323 — and that when a party is claiming under a survey where the course or distance must yield without data to determine whether the mistake was in the one or the other, the mode of closing the survey must be adopted which operates most unfavorably to the party claiming under it. Preston Heirs v. Bowman, supra, and Pearson v. Baker, supra. '
Finding neither substantial nor prejudicial error in the judgment appealed from it is affirmed.