Logan v. Bull

78 Ky. 607, 1880 Ky. LEXIS 71

• Court: Court of Appeals of Kentucky
• Decided: November 10, 1880
• Status: Published

Opinions

.JUDGE PRYOR

delivered the opinion of the court.

This action was instituted in the Louisville chancery court ■on the 1st of December, 1873, by the appellants, Logan and wife, against John Bull, for the specific execution of a contract • evidencing the sale of a lot of ground and the improvements • on the northeast corner of Fifth and Market streets, in the -city of Louisville.

The contract is dated on the rith of April, 1873, and by its terms the appellants, Logan and wife, by their agents, Buckhanon & Rogers, sold the lot..and its improvements to John Bull in consideration of $48,000, one third of that sum to be paid on the delivery of the deed, one third in twelve months, and one third in twenty-four months, both the deferred payments to bear six per cent, interest, and to be secured by a lien on the property conveyed. The appellants were to convey free of all encumbrances and taxes, with a covenant of general warranty, with the exception of some liens then on the property, and they were to be assigned and transferred to Bull without recourse. The ■ contract was to be fully executed so soon as the attorney of Bull could examine the title, 'and this was to be done by the first of May, 1873, the appellant being entitled to the rents until the delivery of the deed and payment of the $16,000, ■&c. The contract was signed by John Bull, and by John Logan and Emma P. Logan, his wife, by Buckhanon & Rogers, their agents.

Bull died during the pendency of the action, and his widow and devisees are the appellees. It is alleged in the petition that the appellants are able, willing, and ready to make a good and perfect title to the property sold, and a. conveyance in accordance with the contract is tendered, with the additional allegation of an offer on the part of the appellants to comply with their contract by tendering the-conveyance on the 1st of May, 1873, and a refusal to accept the deed by the vendee, John Bull. The allegations of the petition are negatived by the answer, except the offer to perform on the part of the appellants and an averment that the appellants are not able to comply with their contract, and a call made on the latter to exhibit their title.

It is insisted by counsel for the appellant that in order to entitle the vendee in a case like this to demand an exhibition of his vendor’s title, he must allege either an entire want of title, or point out the particular defects of which he complains. Cases may be found prior to the adoption of the-Code sustaining a different view of the question raised, and that the vendee has the right to demand an exhibition of title, without specifying the particular objection to his vendor’s title. He admits, in effect, that his vendor has some title, but that the title is defective; or if not, he claims the right to inspect the title for the purpose of ascertaining whether it is such a title as he should be compelled to accept. This is bad pleading, and must necessarily conduce to great inconvenience and delay where the vendor is compelled to exhibit his title in order that his vendee may be placed in a condition where he can point out the defects, if any exist. The vendor having alleged his readiness and ability to convey, and in this case tendering a deed, the vendee must either allege that he has no title, or, if the title is defective, must point out the defects that they may be remedied, or the contract rescinded if the defect is incurable and such as entitles the vendee to that character of relief.

A defect in the title may exist that can be at once remedied, or an apparent defect that, when pointed out, can in nowise affect the title, therefore the necessity of an express denial of any title in the vendor, or a statement of facts ■showing that his title is defective.

Both parties, however, during the progress of the case, regarded the issue as to title fully made, and the appellants have •shown a derivation of title, and exhibited the conveyances under which they claim, which,- when connected with their possession, and the possession of those under whom they claim, they insist gives them a perfect title. It is not every ■defect in a title that will authorize the chancellor to rescind the contract. In this case there was a continued adverse possession of the lot sold by-the appellants and those under whom they claim for the period of near fifty years, and that possession accompanied by a paper title, and, so far as appears from the record, no assertion of claim has ever been made adverse to either the appellants’ possession or title. Nor has the possession been constructive by reason of the title ■under which the appellants and their vendors claim, but •during the entire period there has been an actual possession and enjoyment of the property.

In the year 1806 the trustees of the then town of Louisville •conveyed a lot of ground, including the lot in controversy, to one Patton. In the year 1818 Charles Cotton, under whom these appellants and their vendor derived title, by a proceeding in the Louisville chancery court, recovered this lot or the title from Patton’s heirs, and á conveyance was made to him in that case, properly acknowledged and admitted to record. One McConnell had, prior to that time, conveyed the lot to Charles Cotton, and the latter, finding the title in Patton’s heirs, instituted the action already alluded to, in which he alleged that the conveyance was made by McConnell to Patton to secure the latter in his liability as-the surety of McConnell, and was intended to operate as a mortgage only. In the year 1817 Charles Cotton conveyed the lot to David L. Ward, and afterwards made another conveyance to Ward in 1821, in consideration of $12,000, four thousand of which was paid in hand. This latter conveyance was made by reason of his not having the legal title - when the deed of 1817 was executed. In the year 1824 Ward conveyed the lot to'Stephen Ormsby and others in trust for the payment of certain debts, and for other purposes mentioned in the deed. This trust deed acknowledged an indebtedness to Cotton of eight thousand dollars, and by its terms Ward could dispose of the land or invest others with that power. These trustees, Ormsby and others, under the deed of 1824, conveyed all their right and title in this, lot of ground to Charles Cotton in the year 1826, at which time Cotton entered into the possession, and he and his vendees have continuously occupied the ground since that date, and were in the possession by their tenants when this-action was determined. Ward seems not to have united with the trustees in the conveyance to Cotton, and this constitutes the defect in the title of which the appellees complain.. The heirs of Ward were made defendants to this action and called on to assert title, but no claim was made, and none could have been successfully maintained after the lapse of half a century, by Ward’s heirs or any of the beneficiaries in the trust deed. The lost link in the chain of title, if such a fact exists, is supplied by a continued occupancy that would bar any recovery by an adverse claimant. The lapse of time may give a perfect title, and while the mere occupancy and claim by the vendor for the period of fifteen or twenty years may not be sufficient to authorize the chancellor to say that the vendee must accept his title under a covenant that he will make a good and perfect title, there can be no doubt but an adverse possession for such a period as has been shown in this case, coupled with the written evidences of title, although defective, would vest the occupant with a perfect legal title.

By section 4, General Statutes, chapter 71 (the. same provision in Revised Statutes), “the peiiod for which an action for the recovery of real property may be brought shall not in'any case be extended beyond thirty years from the time at which the right to bring the action first accrued to the plaintiff or the person through whom he claims by reason of any death, or the existence or continuance of any disability whatever.” Independent of any title of record in this case, the adverse possession would have the effect of a conveyance, and the chancellor, when informing himself as to the nature of the title, can have no doubt as to the ability of the parties to make such a conveyance as will fully protect the purchaser against any adverse claimant. (Fry on Specific Performance, 348; Brassfield v. Walker, 7 B. Mon., 97; Jarboe v. McAtee’s heirs, 7 B. Mon., 279.)

It is also maintained by counsel for the appellees that the defects in the Woodford county record, by which Mrs. Logan claims to have been invested with title, as well as her brother, Charles Cotton, of .whom appellant Logan purchased, are such as endanger the rights of the purchaser in this case if he is required to accept the conveyance. This-action in the Woodfoi'd circuit court was instituted by the administrator and heirs of Charles Cotton for a settlement of the estate and a division of his lands. William Cotton, one of the children of Charles Cotton, died, leaving infants who were under age at the rendition of the judgment in that case. Pi'ocess was regularly served on the infants, and a guardian ad litem appointed, a judgment rendered, and a division had without an answer by a guardian ad litem. The report of a division was made by commissioner properly appointed and confirmed by the court, deeds made, and the parties placed in possession of their respective lots.

This judgment of partition was rendered in the year 1864, and the period of near 14 years having elapsed since that judgment, it is scarcely probable that the partition would or could be disturbed. How old the children were when the judgment was rendered does not appear, and, under the circumstances, the bare possibility that an appeal may be taken, and, when taken, the judgment reversed, and when reversed, that the partition may be shown to be unequal, and for that reason set aside, will not authorize a rescission at the instance of the vendee or prevent a specific execution at the instance of the vendor. Similar objections might be made in almost every case where a judicial proceeding is relied on for the purpose of transmitting the title. The case of Lewis’ representatives against Richardson’s heirs is unlike this. In that case the land was patented to Tanner in 1785, and Tanner sold to Hart without any conveyance. It is alleged that the land was divided between Hart’s heirs, but no division is shown or deeds made; and further alleged that the Harts sold to Oldham, and no conveyance is produced, and that Oldham sold to Richardson, and the latter held without any written evidence of title. Claimants existed also who labored under disabilities, such as coverture and infancy, and this court held that a possession of twenty years did not vest the occupant with such title as his vendee should be required to accept. The title of the appellants in this case should have been held sufficient to enable them to convey in accordance with the terms of their bond to Bull.

It is further contended by the appellees that a specific ■execution of the contract should be denied, because the title to a part of the lot is in the feme covert, and as the chancellor has no power to compel hei' to convey, there is such a want •of mutuality in the obligation as to render the contract invalid.

The general doctrine is, that a contract incapable of being ■enforced against one party, that party is equally incapable of enforcing it against the other. (Fry on Specific Performance, page 198.)

It has often been held under this rule, that a party at the time he makes his contract,- although not invested with such a title as he undertakes to convey,-may compel a specific execution where time is not of the essence of the contract. Cases may be found, and language used by some of the ■ elementary writers on the subject, conducing to the conclusion that, in the absence of such a title in the party at the time of making the contract as he contracts to convey, the vendee may rescind, and a specific execution will be denied; -but the equitable rule as now settled by nearly all the authorities on the subject is, that when the contract is required to be performed, if the party is able to convey, and tenders his ■deed, the contract will be enforced, although his title was defective at the date of the contract; and if not able to •convey at the time of filing a bill for rescission, if time is not of the essence of the contract, the chancellor will permit the vendor, if he can do so within a reasonable time, to .supply the defects in his title, so as to comply with his contract. (Dressel v. Jordan, 104 Massachusetts.)

In this case the husband and wife, living at the time in the • state of Missouri, authorized their agents in Louisville, by-telegraph and by letter, to make the sale to the ancestor of the appellees on the terms mentioned in the writing. The obligation to perform the contract was as binding on Logan as on Bull, and the fact that the title to a part of the lot was in-the wife, who could not be compelled to convey, is immaterial. If in a reasonable time Logan was ready to make good the title, and particularly when he has not failed to make a title on the demand of the vendee, the purchaser-should be compelled to accept it. The ancestor of the appellees knew when he made this purchase that the title to - a part of the lot was in the wife, and that the chancellor could not coerce a conveyance, and whether he possessed, this knowledge or not, the obligation on the husband to convey was as binding on him as the obligation on the vendee to pay the money.

The ancient practice in equity was to decree the husband to perform his contract in such a case where, as Lord Elden says, it was usually impossible for him to perform. The-modern rule on the subject is to adjudge a specific performance, although the title may have been in the wife when the contract was made with the husband, if the latter is ready to comply by tendering such a conveyance as will pass the-title. If the wife consents to convey, and does convey, thevendee has no right to complain.

■ The appellees further say that no tender of a conveyance was made by the appellants or an offer to comply with their-contract; that the contract was in fact abandoned, and appellee’s ancestor has invested his money in other real estate, and appellants are now seeking to' enforce the agreement: ' because of the decline in the marketable value of such ‘ property.

A tender is distinctly averred in the original petition and not denied in the answer, and the offer to file an amended answer placing in issue this allegation was refused by the court, and that very properly, as there was no reason assigned why the averment was not denied in the original pleading. It is evident from the proof that appellants tendered a deed in accordance with their agreement, and that the contract was about being executed by .the payment of the money and the acceptance of the deed, when a suggestion was made as to some defect in the title, and, at the instance of-Bull, further time was given that he might investigate the-title. The witnesses for the appellants say that a tender of the conveyance was made, and that fact may have escaped the attention of counsel, whose minds were on the questions arising as to the alleged defects in the title; and whether so or not, all parties concede the readiness of the appellants to convey, and agree that the delay was made to enable Bull to satisfy himself in regard to the title. It is not alleged that the contract was abandoned, nor is there any testimony-in the case conducing to such a conclusion. The vendee, long after the time at which the deed was to have been delivered and the money paid, expressed his desire to own the property, and the appellants at no time abandoned their right to enforce the contract.

As the appellants were ready to comply, and further-time given Bull that he might perform his part of the-contract, it was the latter’s duty to have notified appellants of his purpose not to accept the conveyance. This action was instituted within eight months after the date at which the conveyance was to have been made, and when the delay-was made at the instance of Bull, that he might satisfy himself as to the condition of the title, the delay in bringing the action is not so unreasonable as to evidence an abandonment of the contract, and although the pecuniary condition •of the vendee may have changed within that time, or other „ investments made of his money, it is to be attributed to his own conduct, and not to the action of the appellants.

It is also proper to remark, that nearly all the authorities relied on by counsel, where it has been held that a delay of ten months in making the title, or a less time, is such laches as deprives the vendor of the right to enforce the contract, are cases where time was held to be of the essence of the agreement. After a careful consideration of this record, we are satisfied the appellants were entitled to have their contract enforced, and the judgment below is reversed, and cause remanded, with directions to render a judgment enforcing the contract. By its terms the appellants expressly reserve, the right to the rents until a deed is made and the sixteen thousand dollars are paid. The rents, therefore, will be set off against the interest up to the date of the judgment.

The appellants, on tendering a conveyance, with a clause ■of general warranty, properly executed and acknowledged by husband and wife, and an assignment of the leases, if ■any, with an offer to surrender the possession if no leases exist, will be entitled to a judgment for the whole of the purchase money. The chancellor, by an interlocutory order, if the appellees desire it, should give a reasonable time to enable them to raise the money.

Judgment reversed, and cause remanded, for further proceedings consistent with this opinion.