Fleming's Heirs v. Duncan

| Ky. Ct. App. | May 24, 1804

■ The proof of canceling the contract is not clear and satisfactory, and, therefore, the inferior court did right in decreeing a specific performance. But the terms on which it was decreed are unjust, as the proof of payment of the consideration money is equally as doubtful as the proof respecting the canceling of the contract, and the appellants’ producing the bond for £250 without any credit; the proof of payment devolved on the appellee, who has not satisfactorily proven it; there is error, therefore, in so much of the decree as directs a specific performance upon the payment of only £35, with interest therefor. The decree, so far as it is deemed erroneous, must be reversed with costs. Therefore, it is considered by the court, that the decree aforesaid be reversed and set aside; that the cause be remanded to the Bourbon circuit court, with directions to enter up a decree in favor of the complainant in that court for the land in the bill mentioned, upon his paying or tendering to William, John, and Thomas Fleming, or to such person as maybe legally authorized to receive it for them, or either of them, the sum of £250, with interest thereon after the rate of five per centum per annum, from the 9th day of December, 1784, until paid, and that the appellants recover of the appellee their costs by them about their suit in this behalf expended, which is ordered to be certified to the said qircuit court.