Tapp, &C., v. Nock

• Decision Date: 19 December 1889
• Parties: Tapp, &c., v. Nock.
• Court: Kentucky Court of Appeals

89 Ky. 414

Tapp, &c., v. Nock.

Court of Appeals of Kentucky.

December 19, 1889.

APPEAL FROM LOUISVILLE CHANCERY COURT.

BROWN, HUMPHREY & DAVIE FOR APPELLANTS.

JOHN ROBERTS FOR APPELLEE.

JUDGE BENNETT DELIVERED THE OPINION OF THE COURT.

The appellants, having seen the real estate in controversy advertised in the Courier-Journal for sale by Stratton & Co., real estate agents, on the 28th day of March, 1887, applied to them for the purpose of purchasing it. The application resulted in the following agreement:

                                 "LOUISVILLE, KY., March 28, 1887
                

"Mr. Samuel L. Nock:

"We will give you six thousand seven hundred and twenty dollars, payable one-third cash, balance in one and two years, six per cent. and lien, for your property, ninety-six by two hundred feet, situated on the east side of First street, the south line of which is ninety-six feet north of Caldwell street. You to make a good title and give general warranty deed.

                           "[Signed]                W. J. TAPP
                                                   "L. S. PARSONS."
                

To which offer the appellee, in writing, replied very soon on the same day, as follows:

                                 "LOUISVILLE, KY., March 28, 1887
                

"Messrs. W. J. Tapp and L. S. Parsons:

"I will take six thousand seven hundred and twenty dollars for my property, situated on the east side of First street, the south line of which is ninety-six feet north of Caldwell street. The above amount, payable one-third cash, balance in one and two years, with six per cent. and lien. Will make you a good title, and give general warranty deed.

                          "[Signed]           SAMUEL L. NOCK."
                

These two writings — one an offer to buy the specific property at a specified price, and the other an unqualified acceptance of the offer — constituted a valid and enforceable executory sale of the lot. These writings also obliged the appellee to convey to the appellants a good title to said lot by a general warranty deed, and also bound the appellants to accept such conveyance and deed. But the writings were silent as to the time in which such conveyance and deed should be made. Hence equity, as well as law, allowed a reasonable time in which to make the conveyance and deed.

On the 6th day of April, 1887, the appellants wrote to Stratton & Co. that the original and new deed had not been furnished them, according to the understanding that they should be furnished, in order that they might have the title investigated, and that the memorandum of title furnished them to enable them to have the title investigated, was not sufficient for that purpose; that they, therefore, receded from the offer made on the 28th day of March preceding.

The appellants, on the same day, received a reply to the effect that there was no agreement to furnish the appellants with old and new deed; that it was not customary for agents to do so; that the memorandum was sufficient; that, unless by special agreement, the seller was not bound to furnish abstract of title; that appellants would be held to the performance of the contract, &c. On the 28th day of May following the appellee tendered to the appellants a general warranty deed to this property, which the appellants refused to accept, upon the ground that they had theretofore receded from the proposition to purchase the property which they had the right to do, because of the fact that the appellee had unreasonably delayed to make a clear title to said land, time being of the essence of the contract.

As the question presented by this record is well settled by this court, any extended legal argument is unnecessary. In Cotton v. Ward, 3 Mon., 313, it is said: "Where a contract for the conveyance is merely executory, and a time fixed for the conveyance to be made, if there be a delay beyond that time in completing the title, which has been occasioned by the fault of the vendor, the purchaser will not, in general, be compelled to accept the title. Even in such a case, however, where the delay has been occasioned by the state of the title, and not by the negligence of the vendor, a court of equity, considering the time of performance not of the essence of the contract, unless expressly made so by the stipulation of the parties, will compel the purchaser to accept the title. The invariable inquiry of a court of equity, when about to pronounce a decree in such...