6 Ky. 278 | Ky. Ct. App. | 1814
OPINION of the Court, by
Jacob Myers received from Jacob Owings, dec’d. in his lifetime, money to purchase land warrants, and having obtained the warrants in his own name gave his obligation to Owings for the conveyance of 1000 acres of land,, one half of the amount for which the warrants were obtained. After this Owings devised the land to Thomas,. Joshua and Jesse Mummy, and made Samuel Mummy the executor of his will. After the decease of Owings, his executor, in February 1786, applied to Myers in the then district of Kentucky, and obtained from him an obligation qonditioned for the conveyance of the 1QOO acres, to be laid off on any. end, side, corner or edge of a 5000 acre tract then held by Myers on Slate creeks near the Little Indian Fields,, as might best suit said
The court below on a final hearing made a decree dismissing the appellants’ bill; from which decree they have appealed to this court.
It is-contended for the appellees that C. Owings, with whom Samuel Mummy the executor left Myers’s obligation for the purpose of obtaining a conveyance to the 1000 acres oi land, some time in the year 1786, after the obligation was executed, elected to take the 100® . acres on the lower end of the tract of 5000 acres, which was accordingly laid off to him ; and hence it is urged the appellants’ claim should be confined to that end of the tract, thereby avoiding any interference with the land purchased by Morgan. It is true hád Owings been authorised to elect the part of the tract to be conveyed by Myers, and actually have made his election, the appellees would be bound by it, and prevented from obtaining any land not included in the choice made by their agent; but unless such an agency has been proven in this cause, it is unnecessary to examine into the proof as to the exercise of that authority : for it is clear the appellants’ right cannot be affected by the unauthorised act of Owings. There is no evidence in the cause proving such an authority. The deposition of M’Intire, upon which great reliance was made in. argument to prove an election by Owings, states nothing as to Ow-ings’s right to elect. It is true Owings proves that the obligation was left with him by Samuel Mummy, the
We are of opinion, therefore, the decree of the circuit court is erroneous and must be reversed with costs. ' The cause .remanded to that court for a decree to be entered according to the principles of this opinion.