Cushman v. Gaither

5 Ky. Op. 183, 1871 Ky. LEXIS 303

• Court: Court of Appeals of Kentucky
• Decided: September 27, 1871
• Status: Published

Opinion

Opinion by

Judge Peters :

That appellant executed the bond for a conveyance of the 160 acres of land therein described, and the receipt endorsed thereon for five hundred dollars part of the purchase price, the evidence leaves no room to doubt, and thus far we fully concur with .the circuit judge.

But by the terms of the bond appellant was only bound to convey the land by deed of general warranty when t'he purchase money was all paid, which was not done when this suit was instituted, and as there is a prayer in ;the petition in case the court should be of opinion that appellant had sold the land to Gaither for judgment for the purchase money, and it is admitted that five hundred dollars were unpaid, the court should not only have adjudged that sum to appellant with the interest, but should have adjudged a lien on the land therefor, with the meanb of enforcing it. Appellee was in default in no.t paying all the price, or tendering the unpaid balance in count, whereby he would have entitled himself to a conveyance. No question is raised as to the sufficiency of appellant’s title, and the contract should have been enforced according to the rules of equity in such cases.

Wilson, for appellant. Murray, for appellee.

Wherefore the judgment is reversed, and the cause is remanded for judgment in conformity to this opinion — and as appellee was in default in failing to pay all of the purchase money, each party should pay his own costs in the court below. The date fixed in the judgment for the commencement of interest seems to be correct.