128 Ky. 496 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
On March 13, 1906, the parties to this controversy entered into the following.contract: “This contract witnesseth.:. I have this day bought of Lizzie • T. Prewitt.all of that part of. her Weathers farm that lies-: north of the line that we have agreed upon, said line begins, at a point on-the Clontonsville pike a-little' north of where three locust trees- stand] and runs in.an-
To support the judgment appellee depends upon the following cases decided by this court: In Butt v. Riffe, 78 Ky. 352, Butt purchased of Riffe a tract of land which was conveyed to him; Riffe retaining a lien for the unpaid purchase money. In the deed Riffe warranted the title generally, and stipulated that he would give Butt, free and full possesison of the land oil a day named in the conveyance. After Butt took possession under the conveyance, Napier instituted an action in the Lincoln circuit court, asserting a right of way over the land: A trial resulted in a judgment decree^ ing that Napier was entitled to a passway embracing a strip of land 25 feet wide and one-half a mile long ■through the land. After this judgment was entered, Riffe instituted an action on the notes for the unpaid purchase money. In defense to this action, Butt asserted as a counterclaim the damage he had sustained by reason of the recovery of the passway by Napier, alleging that at the time of sale and conveyance he was ignorant of any claim that Napier had a passway, and that Riffe had concealed from him the existence of such a right. The .lower court sustained a demurrer to the answer and counterclaim.- On appeal this court, although holding that the passway obtained by Napier was a breach .of the covenant- of warranty in the deed for which he was entitled to-recover
In 26 Am. & Eng. Ency. of Law, 67, the principle is announced, supported by numerous authorities, that: “Before the discretion of a court of equity will be exercised in favor of the specific performance of a contract, it must appear that the contract is fair, just, and equitable in all its parts. If, therefore, a decree of specific performance would work a hardship or injustice upon the defendant, or operate oppressively upon him, a court of equity will decline to interfere.” In Story’s Equity, section 750, the author says: “Indeed, the proposition may be more generally stated that courts of equity will not interfere to decree a specific performance except in cases where it would
Wherefore the judgment of the lower court is reversed, with directions to proceed in conformity with this opinion.