36 Ky. 473 | Ky. Ct. App. | 1838
delivered the Opinion of the Court.
This writ of error brings before us for revision, a judgment for damages, obtained by Joshua D. Grant against Masterson Ogden, in an action of covenant, on a writing, signed by both parties, on the 28th of September, 1835, and reciting that Grant had, on that day, conveyed to Ogden a certain tract of land, containing one hundred and eleven acres and a fraction, “with this understand- “ ing and agreement between the parties, that the said “ Ogden is, as soon as possible, to sell said land for the “ best possible price, and dispose of the money arising “ from the sale, by paying himself eleven hundred and “ twenty seven dollars and forty five cents,” acknowledged to be due to him from Grant, and the residue to the latter, or to his order; and stipulating, also, that Ogden should dismiss a suit then pending between himself as plaintiff, and Grant ás defendant, and “deliver up” a r r mortgage previously given by Grant to Rice, Crosby, and himself.
The breach assigned, was an alleged failure to sell the land.
Having overruled a demurrer to the declaration, and sustained a demurrer to a plea, averring that Grant had prevented Ogden from selling the land, by mortgaging his interest therein to a stranger, after the execution of the conveyance to himself, the Circuit Judge instructed the jury, on the trial, that the legal “measure of damages” was the difference between the sum due to Ogden, and that for which he might have sold the land when he first had an “opportunity” to sell it, “for a rea
But, in that opinion, it seems to us that the circuit Judge erred.
The recitals in the covenant clearly show, that it was executed simultaneously with the conveyance of the land, and was intended to operate as a defeasance thereof. Both documents should therefore be considered together, as constituent parts of one entire contract. And thus considering the contract, there can be no doubt that the land was conveyed to Ogden, not absolutely as his own, but merely in trust for the purpose of being sold by him as a trustee, for securing his own debt, and paying the residue of the avails of the sale to Grant, as residuary cestui que trust. Consequently, though Grant might, by an action at law on the covenant to sell the land, recover damages for any special loss which may have resulted to him in consequence of a failure by Ogden to execute his power according to his undertaking, yet he has no right to elect, in any such action, to recover the value of the land, less by the debt due to Ogden, and thereby convert the deed of trust into an absolute conveyance, uncoupled with any condition or trust,>and thus compel Ogden to hold the land as his own, and pay the assessed value of it.
Grant’s most appropriate, and only sure and safe remedy, was a bill in chancery for enforcing the trust, and obtaining indemnity for any injurious delinquency by the trustee. And, considering the entire contract as one of trust, it would be difficult, perhaps impossible, to ascertain whether any actual damage has accrued to Grant, and, if any, how much, in consequence of Ogden’s alleged delinquency, before the power shall have been
We are, therefore, of the opinion that there was error in the instruction given to the jury, and consequently, also, in the final judgment rendered by the Court below.
The plaintiff in error insists,, moreover, that the declaration is insufficient, because! it does not aver that Grant had given his assent to a sale by Ogden, and that the plea, to which we have before alluded,-,was good,' because it shows that Grant had divested himself of power to authorize a sale, which, as argue'd, could not," be legal, according to the second section of an act of 1820 (Stat.Law, 449,) without, either the consent of the beneficiary, or a decree of Court.
In this view, however, we do not concur. The second section of the statute of 1820, supra, was enacted for the benefit of persons who convey estates in trust with power to sell,, and should not, as we are inclined to think, be applied to cases in which the party conveying has not only given a power to sell, but has, for his own advantage, exacted a covenant to sell. And we are, also, of the opinion that, as the statute only requires the
We are, therefore, of the opinion that the declaration shows a legal cause of action for nominal damages at least, and that the plea we have been considering is not good.
But for the error in the instruction given to the jury, the judgment of the Circuit Court must be reversed.
It is therefore considered, that the judgment be re. versed, and the cause remanded for a new trial.