13 Ky. 358 | Ky. Ct. App. | 1823
Opinion or the Coub/t.
IN pursuance to a contract made between these par-. ties, the following writing was executed by them, to wit: “ Article of agreement made and entered into this 28th day of June 1819, between David Herndon of the county of Breckinridge and state of Kentucky of the one part, and David J. Lewis of the county of Albemarle and state of Virginia of the other part, witnefseth: The said Herndon has this day bargained and sold a cerlain tract of land, lying and being oif the waters of Long
DAVID HERNDON.
DAVID J. LEWIS.”
To enforce the specific execution of this contract, Herndon, on the 20th of October 1820, exhibited his bill in equity, suggesting that indue time he would, through the court, tender to Lewis a good and sufficient title to the land described in the written agreement, and alleging that in pursuance of the agreement, Lewis,on the 15th ofNovember 1819, took possession ofthe land, and has occupied the same ever since; but that notwithstanding the first instalment has becomepayable, Lewis has failed and refuses to pay the amount thereof, and gives it out in speeches that he never will make payment, &c. The bill makes Lewis a defendant, and prays for a specific enforcement of the contract, &c.
Lewis answered, admitting the contract set forth in the written article of agreement. He states, that being desirous to remove with his family from Virginia, where he then lived, to some healthful situation in the county ofBreckinridge, he met with Herndon, who propos-. ed selling the land upon which he then lived; that after some conversation on the subject, the terms of sale were agreed on between them; but that before the writing was executed, having understood difficulties frequently occurred in relation to the title of land in this country, and having also been informed, that a disease commonly called the milk or puking sickness, had often visited certain portions and situations of the county of BrecMilrj'clge with great fatality, threatening whole neighborqfjqds with ,death and desolation, and bidding defiance tp‘medica]¿kill, and which disease was thought by many to arise from local causes hitherto unknown to
He protests against the court decreeing a specific execution of the contract; and after making his answer a cross bill, prays for the contract to be cancelled, &c.
To the answer of Lewis, which was made a cross bill, Herndon responded, admitting that some such enquiries about the disease and title as are mentioned in the answer of Lewis, were made about the time the contract was made; but he denies that in his reply to those en-quiries aiy false statements were made. He admits the disease had prevailed in some parts of the county of Breckinridge, but denies that it had ever visited the vicinity of the land, to his knowledge or belief. He ad-
The court below on a final hearing decreed the cor--Iract to be executed by boil),parties; and from that decree Lewis has appealed.
The evidence, we think, is not of a character calculated to establish in Herndon that clear and indisputable title which ought to be shewn by a complainant seeking the aid of a court of equity to enforce the specific performance of a contract for the sale of land.
There is contained in the record enough to shew that since the commencement of this suit Herndon has obtained a conveyance of Hardin’s title; but that title is admitted by Herndon to be of no validity when brought in competition with the title claimed by him when he contracted with Lewis, and there Is no sufficient evidence in the cause to prove that Herndon is invested with the title under which he then claimed. He appears to have then claimed under the title of Hargis’, and it is proved that he and those through whom he claimed had been possessed of the land for upwards of twenty years before his sale.to Lewis. That evidence-may be sufficient to shew that when brought into com petition with the title of Hargis, that which Herndon has since obtained from Hardin could not' prevail; hut it is evidently insufficient to shew that Herndon is now invested with the title of Hargis. Were it even conced
Under such circumstances, therefore, we are not at liberty to infer that Herndon has become invested with the title of Hargis, and as that title is admitted by him to be paramount to the title which he has obtained from Hardin, he cannot be admitted to have shewn himself entitled to the aid of a court equity.
In fact, by failing to shew an ability to convey the title of Hargis, Herndon has evinced the propriety of Lewis’ conduct in abandoning the possession of the land, and instead of the decree which was pronounced by the court below, the contract ought to have been cancelled and Herndon’s bill dismissed with costs.
The decree must be reversed with costs, the cause remanded to the court below, and a decree there entered not inconsistent with this opinion.