19 Tenn. 310 | Tenn. | 1838
delivered the opinion of the court.
This is a bill for the specific performance of the following written contract: “Received of Robert Harper, one thousand dollars in full, for one hundred and twenty seven and a half acres of land, off the west end of my tract, on which I now live, adjoining the said Harper and Jno. P. Wagner;— it is also understood, that said Harper comes to the Madison-ville road, and from thence with the direction of my cotton patch fence, to the mouth of the gut on the river.”
Now it is contended, that this is a contract to purchase*
Here then are two intents in a contract, contradictory to •each other, both of which cannot be enforced. If complainant receive the quantity of land purchased by him, the Mad-isonville road, and a line from thence to the river, cannot be made the eastern boundary. If the Madisonville road be made the eastern boundary, then the complainant loses thirty or forty acres of his land, and the consequent amount of his purchase money. Which interest must prevail? Both law and justice say the primary, it was not the intention of the complainant to buy, nor of defendant to sell, the land to be limited by a line from the Madisonville road to the river, unless that should equal 127J acres, the quantity paid for. But the intention was, that the complainant should make the Madisonville road his eastern boundary, although it might include more land than the 127§ acres contracted for. Then, as between Harper and Lindsay, the complainant is entitled to have the lines of his land extended east of the Madisonville road, so as to give to him 127 i acres, the quantity which he intended to purchase.
But it is further contended, for James M. Gray, who has become a party to this suit, by a cross bill, that after the .contract between Harper and Lindsey, he became the purchaser of the remainder of the tract of land from Lindsay, and
Gray stands in no more favorable attitude, in relation to Harper’s right, than Lindsey. His purchase was made after Harper’s, his contract is executory, and therefore, as Harper’s contract was first in point of time, he is first in point of right. But, in truth, Gray only purchased the residue of the tract, after Harper’s was surveyed. This, of itself, in-: dependently of the principle above laid down, would give Harper the right, as against him, to have his land laid off, according to the legal construction of his contract, he being only entitled to the residue, after Harper’s claim had been satisfied.
We therefore think there is no error in the proceedings of the chancery court, and affirm the decree.