Whitman v. Wene

1 Tenn. Ch. R. 634

• Court: Court of Appeals of Tennessee
• Decided: April 15, 1874
• Status: Published

Opinion

The Chancellor :

If this case turned upon the issue made by the pleadings, proof and argument of counsel, I should feel great doubt bow it ought to be decided. That issue is whether the instrument sued on was ever executed by the defendant. The answer denies the execution under oath, and there is only one witness, the attorney in fact of complainant who signed it in the name of complainant, to prove the execution. There is corroborating testimony, however, to sustain him, strongly persuasive in view of the character and intelligence of the witnesses ; but whether sufficient to overturn the answers, and the evidence of the defendant as a witness, may admit of doubt.

Upon examining the agreement itself, however, I find that, even if its execution be satisfactorily established, it is deficient in those qualities of mutuality and equality which are essential to the specific execution of contracts in this court.

The bill styles the instrument sued on as “a certain memorandum of agreement of sale and purchase of said premises, a house and lot, the same reciting and including a bond in the usual form for a specific compliance with its terms, conditioned with a certain forfeiture in case either should fail to do so at a time therein specified.” The instrument itself recites that the parties have mutually agreed to enter into this bond in tbe penalty of $500, witb tbe condition hereunder written for securing unto tbe said Wene, bis beirs and assigns, tbe quiet enjoyment of tbe same free from all encumbrance, and that possession begin on tbe 1st day of January, 1873. But tbe condition wbicb immediately follows is only to secure tbe payment of tbe purcbase-money, and is obligatory upon Wene alone. If, however, we consider tbe preceding clause as embodying the condition to secure Wene, tbe stipulation is only for quiet enjoyment free from encumbrance, and possession on tbe 1st of January, 1873, for all of which tbe security is tbe penalty of $500. There is, it will be noticed, no condition such as is usually contained in title bonds, for tbe execution of a warranty deed in fee simple upon tbe payment of tbe purcbase-money. There is. no condition for a deed of any sort, even a quit-claim deed. Wene is entitled to nothing under tbe agreement, dependent upon tbe penalty, except possession and quiet enjoyment free from encumbrance, but even as to these be cannot demand any assurance of title. His only recourse in case of breach, is tbe penalty of $500. Tbe contract is grossly unequal inasmuch as tbe defendant is bound for $2,800, wbicb, according to complainant’s construction of tbe contract, be must pay without reference to the limitation of tbe penalty to $500. In other words, the complainant gets $2,800, for wbicb be has tbe personal liability of tbe defendant and a lien on tbe land, and gives, in return, an obligation in tbe penalty of $500 to put tbe defendant in possession of the land and secure him quiet enjoyment free from encumbrance —a liability against wbicb tbe statute of limitation begins to run at once. There is no covenant for warranty of title wbicb runs witb tbe land, and gives tbe purchaser the benefit of all previous warranties. There is no covenant for title at all.

Tbe instrument does start out witb saying, that complainant “has this day sold” to defendant tbe lot in question. This is not a stipulation for a deed, and, if it has any operation, is in itself a deed. But tbe bill does not pretend that it was intended as a deed, or was delivered and accepted as a deed. Unless it was so intended by the parties, and actually delivered and accepted as a deed, it would not be operative as such. The recital, therefore, can only be treated as a preamble to the obligation which the instrument after-wards says the parties “mutually agreed” to enter into. That obligation does not include the execution by the complainant to the defendant of a deed of any sort, much less a warranty deed in fee simple.

It may be added that the power of attorney under which the attorney in fact acted, does not authorize him to make a deed with covenants of general warranty, nor even to bind his principal to the extent of the stipulations actually recited in the instrument sued on. The specific execution of contracts is not a matter of right, but of discretion, a legal discretion, it is true, and not mere caprice. But no court of equity will lend its aid to the enforcement of a contract which is manifestly unequal, although the inequality may have been the result of oversight and haste.

The bill must be dismissed with costs.