11 Kan. 488 | Kan. | 1873
The opinion of the court was delivered by
The plaintiffs in error brought their action in the district court of Franklin county upon a bond given by Richmond, one of the defendants in error to Jacolj Way-nick. The bond recited that Richmond was held and firmly bound unto Waynick in the sum of $247.50, and was absolute in its terms so far as the obligatory part is concerned. The condition reads thus-: “The condition of this obligation is such, that if the above bounden John C. Richmond, his heirs, executors, or administrators, shall sell and truly execute or cause to be executed a good and sufficient deed of conveyance to said Jacob Waynick, his executors, administrators or assigns, covering the northwest quarter of -the northeast quarter of section three, etc., then this obligation to be null
The instrument sued on, though in form a bond with a condition, is in legal effect an agreement to convey. “A bond for money with a penalty for not doing a certain thing will be held to be a contract to do that thing:” 2 Parsons on Contr., 515; Dewey v. Watson, 1 Gray, 414; Plumbsett v. M. E. Society, 3 Cranch, 561. Being a contract in writing it imports a consideration: Gen. Stat., 183, ch. 21, § 7. The agreement then is as though it read, “For value received I hereby agree to convey,” etc. Ordinarily, some conditions of payment and some time of conveyance are specified in the bond; but here is an absolute agreement to convey without any conditions of time or payment. A reasonable time had elapsed for performance by the obligor. No demand was' necessary, as Richmond had already conveyed to other parties. The other defendants, the holders of the legal title, admit the record of the bond, and therefore notice of the plaintiffs’ interest. Under this state of the case we think