193 Ky. 355 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
The appellee, the Flahaven Land Company, instituted this action against the Fidelity Eealty Company in the Fayette circuit court for specific performance of the fol~
“Lexington, Ky., March 29, 1920.
“To Flahaven Land Company:
“We hereby offer and agree to purchase your property known as 221 and 223 East Main street, Lexington, Kentucky, with frontage of 41% feet and depth of about 160 feet to alley in rear;
“For the sum of sixty-two thousand two hundred and fifty dollars ($62,250.00), payable one-third cash, balance on or before one and two years, deferred payments to be evidenced by two equal notes, bearing interest at the rate •of 6%, interest payable semi-annually, and to secure said notes a lien is to be retained upon the property conveyed.
“You are to pay the state, county and city taxes for the year 1920.
“This offer is made upon the condition that you deliver to us on or before May 1, 1920, a good merchantable title, frée from all encumbrance, except as above noted.
“We hereby tender our check for $1,000.00 in part payment for said property, same to be applied upon the first cash payment.
“Davis & Wilkirson, Agts.”
“To Davis & Wilkirson, Agts.:
“We hereby accept the above offer, and. acknowledge receipt of your check for $1,000.00.
‘ ‘ The Flahaven Land Co.
By Charles E. Eveleth,- President. ’ ’
After entering into the f oregoing contract, which both parties acknowledge, the appellant, Fidelity Bealty Company, paid $15,000.00 additional cash, making in all $16,-000.00 paid on the purchase price of the two lots, but after examining the chain of title of the vendor to the said lots, and finding therein two alleged defects in the title hereinafter set out, the appellant vendee refused to accept from the vendor a general warranty deed which was tendered for the said property, pay the balance $4,750.00 of the cash installment, and to sign and deliver the two notes representing the deferred payments of the purchase price, hence this suit.
1. It is admitted by appellant, Fidelity Realty Company, that the Albeas were the holders of a perfect title to the real estate in controversy at the time they undertook to convey the same to Katherine Mulich in 1882. After Miss Katherine Mulich acquired the property the city of Lexington improved the streets abutting thereon and charged the cost of said improvements to the property, which being unpaid the city enforced in an action styled City of Lexington v. Katherine Mulich, et al., in the Fayette circuit court. The property which is now under consideration was then sold under a judgment of that court in that action, but the purchaser discovering that the certificate of the officer made to the deed was imperfect, raised that question by exceptions filed to the report of sale made by the master commissioner of the court. After the Fayette circuit court passed upon the question presented by the exceptions to the sale, the case was brought by appeal to this court styled Barron v. City of Lexington, and reported in 32 Ky. Law Reporter, page 92, and we held said certificate of acknowledgment to said deed substantially good and sufficient to pass the title of the real property from the Albeas to Miss Mulieh. Without again going into consideration of the several questions presented by this appeal, directly involving the sufficiency of the certificate of acknowledgment to the deed made by the Albeas to Miss Mulich in 1882, we think it sufficient to say that we adhere to our former ruling sustaining said certificate and holding the deed to pass perfect title from the Albeas, grantors to Miss Mulich, grantee.
Applying this rule the use of the word east for the word ivest, if incorrect, fades into insignificance, for the property is located by beginning at the edge of East Main street at a point on the property of Miss Mulich 19 7/12 feet from the Kellar line and running with the edge of said East Main street to the Kellar line. There was no dispute whatever between the parties to the conveyances as to the correct location of the lot described in the deed, and there has never been any question except in this action about its correct location.
From a careful examination of the entire record we are thoroughly convinced that the two alleged defects or imperfections in the title of the vendor, Flahaven Land Company, to the lots in controversy relied upon by appellant, do not render the title imperfect or unmerchantable, but, on the contrary,' the said grantor was at the time of the making of the deed tendered to the vendee the holder of a perfect title to all of the said property. The appellant, Fidelity Realty Company, should, therefore, have accepted the deed tendered by the vendor, paid the balance of the cash purchase price and executed its notes in accordance with the contract.
The judgment is therefore affirmed.