216 F. 975 | N.D.W. Va. | 1914
These facts are undisputed: On January 12, 1906, -Christian Seybold in his lifetime executed to “A. J. -Crickard or his assigns” a written option whereby he agreed to convey “with good and sufficient title” the timber on 770 acres of land at the price of $20 per acre therefor. This contract grants four months
On the day the court decided finally that Seybold had good title to the 540.5-acre part of the <770 acres, Seybold died. The mandate was not handed down and recorded in this court until April 5, 1912. Wilson did not institute this suit until in September, five months thereafter. Can these executors and heirs of Seybold claim he was guilty of laches to their release from liability to perform the contract for' that reason? No; because the obligation had descended to these devisees “to furnish good title” to the timber on the 540.5-acre part of the 770 acres their testator had undertaken to sell, and then it was for Wilson to determine whether he would take the smaller quantity, with abatement of the purchase price, or insist upon cancellation of the contract.
The legal principles enunciated herein are, in my judgment, fully sustained by the following authorities: Pollock v. Brookover, 60 W. Va. 75, 53 S. E. 795, 6 L. R. A. (N. S.) 403, and especially the note thereto; Fulton v. Messenger, 61 W. Va. 477, 56 S. E. 830; John v. Elkins, 63 W. Va. 158, 59 S. E. 961; Armstrong v. Md. Coal Co.,
Decree for specific performance in favor of plaintiff will be entered.