12 Ky. 249 | Ky. Ct. App. | 1822
AT the January term, 1802, of the Logan county court, there was granted to Robert Bryan a certificate for two hundred acres of land, containing therein a location describing the land as lying in Logan county, on Red river, beginning at a hickory in the barrens; thence running westward, southward, eastward and northward, so as to include the complement arid improvement according to law. A survey was after-wards, in April 1805, executed upon this certificate, in the name of Bryan; and the certificate of survey af
On the 22d of October 1807, Reynolds, for a valuable consideration, sold the land described in the sur. vey made under the certificate, to William Kirkland* and gave to Kirkland an obligation for a general warranty deed, to be made so soon as the patent couldbe obtained from the commonwealth, Kirkland paying the state price.
After this, Kirkland sold the land to two of the Campbells ; but, the price being unpaid, he consented that John Campbell, one of those to whom he had sold, and who is alleged to have become the proprietor of the interest of the other, might sellthe land, and that, upon receiving the consideration for which he had sold to the Campbells, he would assign Reynolds’ obliga, tion. Campbell accordingly contracted with Samuel Caldwell and George M’Whorter for the sale of the land, at the price of eight hundred dollars; about three hundred and seven dollars thereof Caldwell and M’Whorter were to pay Kirkland, being the amount of the consideration due Kirkland for the land, from the Campbells ; and the balance to be paid, and was in fact paid Campbell. This contract between Campbell, Caldwell and M’Whorter seems to have been made early in the spring 1811. and on the 25th of March in that year, Caldwell and M’Wb'orter executed two notes for the payment of the consideration due Kirkland, one of which was for one hundred and seven dollars, and the other for two hundred dollars; and Kirkland, on the same day, executed, under his hand and seal, an instrument of writing, though inar. tificially expressed, in substance nothing more than an obligation binding him to assign to Caldwell and M’Whorter, the obligation of Reynolds for a title to ■the land, whenever the three hundred and seven dollars, which they had undertaken to pay. should be discharged. The note for one hundred and seven dollars was afterwards discharged, in a horse paid by Caldwell to Kirkland ; bat the other note still remains unpaid ; and, owing to the insolvency of both Caldwell and M’Whorter, Kirkland has been unable to coercb
Subsequent to this, Caldwell purchased from M3Whorter his interest in the land; and after Caldwell had become insolvent and taken the oath administered to that class of debtors, lie, on the 10th of March 1814, assigned to Frazier, for a valuable consideration, the obligation which had been given by Kirkland to him and M3 Whorter.
Kirkland, after having prosecuted his suit on the* two hundred dollar note, finding that he was unable to coerce payment from Caldwell and M’Whortcr, determined to sell the land for which he held Reynolds’ obligation; and, on the ltth of May 1814, actually sold and assigned the obligation of Reynolds to Henry F. Broadnax, for the sum of two hundred and forty-eight dollars, at the same time making known to Broadnax the circumstances in relation to the obligation which he had previously given to Caldwell and M3 Whorter. At the time of making the purchase from Kirkland, Broadnax appears, however, to have held two other claims to part of the land, under pa. tents which had previously issued from the commonwealth ; and he alleges that he was induced to make the purchase from Kirkland, to avoid litigation, although he insists that the claims which he then held are of paramount validity to that purchased of Kirlcland. Subsequent to this, Broadnax proceeded to pay thirty, five dollars and seventy.five cents, the amount which remained unpaid of the state price, and obtained a patent in his own name for the land purchased of Kirkland.
2. The foregoing are the prominent facts presented in the record, and upon which the present contest must be decided; and the question presented for the consideration of this court, is, whether or not the circuit court was correct in dismissing the bill of Frazier, asserting claim to the land through the assignment of Kirkland’s obligation to Caldwell and M3Whorter, and offering to pay the amount of the principal, interest and costs of the judgment recovered by Kirkland against Caldwell and M’Whorter, and the amount paid by Broadnax to the state on obtaining the patent, and praying that Broadnax maybe compelled
.3. Throwing out of view, therefore, any peculiar Merit which either Broadnax or Frazier can have derived under their respective purchases, the present contest must mainly turn on the question, whether or not* under the circumstances displayed in evidence, Caldwell and M’Whorter, before the sale to Frazier, would have been entitled tq the aid of a court of equify, p, enforce, specifically, the execution of the stipucontained in the obligation given to them by Kirkland. And if any thing like promptness and S(K,f! is required in the fulfilment of stipulations entered into by a complainant seeking the aid of a court of equity, we apprehend they would not; for they have not only failed to discharge the amount which they undertook to pay Kirkland, upon his executing, the obligation to them, but they have evinced a most inflexible and stubborn backwardness in payment, by ')a®lnS the energies of the process of law sued out by Kirkland for the purpose of enforcing payment, They have, it is true, paid Campbell the balance of