87 Ky. 91 | Ky. Ct. App. | 1888
delivered the opinion op the court.
In February, 1879, A. S. Stembridge conveyed to Ms wife, the appellant, a tract of land containing one hundred and twelve acres. The consideration for this conveyance was the undertaking by the appellant to • pay to-Rinehart, A. S. Stembridge’s vendor, a balance of fifteen hundred dollars, with two years’ interest thereon, due on this land by A. S.. Stembridge to said Rinehart, and to surrender a claim of five hundred dollars loaned by the appellant to A. S. Stembridge to pay on this land, and to cancel a promissory note held by the appellant on Mm for six hundred and forty-six dollars. .Afterwards, the appellant borrowed of Gr. W. Jolly the sum of one thousand seven hundred and ninety dollars, which was used to pay the balance of the purchase money, with interest thereon due to Rinehart. She and A. S. Stembridge secured Jolly by executing to him a mortgage on this land. On the twenty-first day of February, 1880, after the making of said mortgage, the appellant executed a written agreement, which recites that the mortgage held by Gr. W. Jolly on said land for one thousand seven hundred and ninety dollars would be due the tenth day of February, 1881. The agreement then provides that £‘if A. S. Stembridge will pay on said mortgage debt, by the time it is due, namely, the tenth day of Feb
The said agreement did not bind A. S. Stembridge to take and pay for said land. The appellant agreed that if he should pay so much on the Jolly note at its maturity, then she would convey to him all of said land except fifty acres, etc.
The agreement contains no promise or obligation on A. S. Stembridge’s part to pay said sum. It was left entirely optional with him to pay said sum or not. Nor did the agreement convey him any present interest in the land; nor did it bind the appellant to convey to him any interest in the land thereafter, except upon the condition of his exercising his option to pay said sum on the Jolly debt at its maturity. This option he never exerciséd, nor did his representatives. His failure, and that of his representatives, to do so, amounted to a decision not to purchase the land on the terms proposed by the appellant. As this agreement did not invest A. S. Stembridge with any immediate interest in the land, and as the appellant was not bound to convey the land, except upon the precedent condition of A. S. Stembridge paying the money upon the Jolly debt at its maturity, the sale was conditional, and as he failed to comply with this precedent condition, he was entitled to no interest in the land whatever.
Again, in cases of executory sales of land, that is, where the purchaser by the terms of the contract receives a present interest in the land, courts of equity will not ordinarily regard time as of the essence of
The judgment of the lower court is reversed, and the case remanded, with directions for further proceedings consistent with this opinion.