114 Ky. 962 | Ky. Ct. App. | 1903
Opinion of ti-ie court by
— Reversing.
On December 12, 1891, the appellant, Williamson, and Col. John Dils entered into a contract by which the appellee sold to appellant an undivided one-third interest in what is known as the “Williamson-Dils Survey,” in Pike county, Ky., supposed to contain within its exterior boundaries some thirty-odd thousand acres. So much of the contract as is necessary for the consideration of this case reads as follows; “It being the one-third interest in the Williamson-Dils and Joe Hall tract of land, estimated to contain 18,000 acres, more or less, which land lies on the waters
The testimony offered by the appellant conduces to prove-that he undertook, in good faith, to have the survey made; that he prosecuted it with reasonable diligence; that he was engaged for a period of about six months in his efforts to make a survey of the land as contemplated by the contract; that the parties living within the boundaries were hostile to his claim, and by threats and intimidation prevented the surveyors from completing the work; and that these threats and demonstrations of force, compelled his surveying parties to quit the work, and for that reason did not complete it. Under such, circumstances, should the court decree a specific performance of the contract? It is a rule in equity that specific executions of contracts is not a matter of absolute right in either party, but upon the reasonable discretion of the court, and, unless it is equitable to do so, courts will not adjudge it. Cocanougher v. Green, 93 Ky., 519, 14 R., 507, 20 S. W., 542; Woollums v. Horsley, 93 Ky., 582, 14 R., 642; 20 S. W., 781. It is evident that the parties to this cony tract did not contemplate that such an obstacle would confront appellant in making the survey as did when he aty tempted to make it. Had the parties known that it would probably result in loss of life or bloodshed to ascertain the-number of acres which the appellant purchased from Dils, it is certain that they would never have entered into the contract; hence we say that neither of the parties had in contemplation such a condition of affairs as arose. The appellant was advised by his friends not to go upon the land, as he
It is urged by counsel for appellee that, as Dils was only required to make a quitclaim deed to Williamson for his interest in the land, therefore he was compelled to accept whatever title Dils had. The parties agreed that the actual number of acres in which Dils had an interest should be ascertained before Williamson was required to pay for the land or accept any kind of a deed. As we have said, the sale was by the acre, and the appellant encountered the same difficulty in the execution of the survey as he would have encountered had the contract required Dils to make a deed with covenants of general warranty. From our view of the case, the character of the deed to be made has nothing to do with it. While Williamson was to accept a quitclaim deed, Dils was never in a condition to tender it to him until the number of acres for which he was required to pay had been ascertained. It would be harsh and oppressive to decree specific performance under the circumstances of this ease. The court below decreed specific' performance, but, in order to do so, was compelled to practically guess at the quantity of land for which the appellant should pay. The contract of the parties did not contemplate that a court should be required to do that, in order to ascertain the number of acres for which the appellant should pay the vendor. We are of the opinion that the contract should be
Judgment is reversed for proceedings consistent- with this opinion.
Petition for rehearing by appellee overruled.