Bussey v. Gant's Adm'r & Heirs

• Decision Date: 31 December 1849
• Citation: 29 Tenn. 238
• Parties: BUSSEY v. GANT'S ADMINISTRATOR AND HEIRS.
• Court: Tennessee Supreme Court

29 Tenn. 238

BUSSEY

v.GANT'S ADMINISTRATOR AND HEIRS.

Supreme Court of Tennessee.

December Term, 1849.

This is a bill for a specific execution of a contract for real estate, filed in the chancery court at Shelbyville, by Bussey against the administrator and heirs of Gant. At the hearing on bill, answer, and proofs, Chancellor Ridley decreed a specific conveyance on the payment of two hundred and eighty-six dollars, interest, etc., and if not paid in a specified time, the land should be sold for the payment of said sum. Complainants appealed.

Wisener and R. L. Davidson, for the complainant; W. and E. Cooper, for the defendants.

MCKINNEY, J., delivered the opinion of the court.

This bill is brought against the defendants as the heirs at law of William A. Gant, deceased, to obtain a decree for the specific execution of a contract entered into between the complainant and said William A. Gant, on the 11th day of April, 1840, for the purchase of a tract of land of one hundred acres, by the former from the latter.

The title-bond, executed at the time of the contract, stipulates, that “when the aforesaid George Bussey pays to William A. Gant eight hundred dollars in cash, then the said Gant binds himself, his heirs and assigns, to make a good warranty title to the said George Bussey, his heirs,” etc. The time limited in said bond for payment of the purchase-money, was the 1st of March, 1841.

The bill alleges that the purchase-money has been fully paid. This allegation is controverted by the defendants in their answer. They state, that a balance of $216.53, with interest thereon from the 4th day of April, 1844, still remains justly due and owing from the complainant in part of the price of said land, as they believe. They allege, that on the day last above mentioned, the complainant and William A. Gant had a settlement of all the accounts, which resulted in the balance above stated, against the complainant. A paper is exhibited by the defendants which purports to contain an account of various sums of money due from the complainant to William A. Gant. The items of the account are without date; but it is rendered probable that they accrued at different times, from a date anterior to the purchase of said tract of land, up to the death of said Gant, which happened in 1844.

The aggregate amount of said account, inclusive of the price of the land, is $2,134.53.

The proof shows that at various times between the 3d of March, 1841, and the 19th of November, 1843, there came to the hands of said Gant, in the capacity of agent of the complainant, the aggregate sum of $1,976.40, the whole of which he seems to have been permitted to retain to his own use. At the foot of the account above mentioned, a credit is stated for $1,718, which, being deducted from the amount of debits, leaves the balance of $216.53, insisted upon by the defendants as part of the purchase-money still remaining due for said land.

It appears from the proof, that the parties were engaged a day or two in endeavoring to make a settlement of all their matters; at which time the account before mentioned was made out by said Gant; but the testimony satisfies us, that the complainant never recognized, or assented to, the settlement insisted on by the defendants; and, in fact, that no valid or binding settlement was ever made between the parties.

In reference to the sum of money received by Gant, and retained by him with the consent of the complainant, and which?? we think, is to be regarded as a payment, there is no proof of any application thereof by the mutual consent of the parties; nor is there direct proof of application by the act of either party.

An account was taken in the cause by the clerk and master, which need not be noticed, as it was disregarded by the chancellor.

The decree assumes that a settlement was made between the parties, which was mutually binding; and gives to the account before mentioned the effect of a stated account; and declares that, if the balance assumed to be due, which, with interest, in $286.53, should be paid to the personal representatives of Gant by the 1st day of November, 1849, then the complainant would be entitled to a decree of...