Combs v. Tarlton's Administrators

• Decision Date: 14 November 1834
• Citation: 32 Ky. 464
• Court: Kentucky Court of Appeals
• Parties: Combs <I>vs.</I> Tarlton's Administrators.

32 Ky. 464

Combs vs. Tarlton's Administrators.

Court of Appeals of Kentucky.

November 14, 1834.

Mr. Monroe for Plaintiff: Mr. Haggin and Mr. Crittenden for Defendants.

FROM THE CIRCUIT COURT FOR FRANKLIN COUNTY.

Judge UNDERWOOD delivered the Opinion of the Court in this case, on the 26th of April last: upon which a petition for a rehearing was presented, which is now overruled.

COMBS bound himself to convey fifty two acres of land to Tarlton, upon the determination of a suit then pending between Martin Nall and Samuel Johnson. The title was in Nall. Combs claimed under a contract with Walker, who claimed under Fenwick, who, by contract with Nall, claimed four hundred acres, of which the said fifty two were part.

Tarlton, in his life time, instituted a suit in chancery against Nall, Fenwick. Walker, Combs and others, for the purpose of obtaining the title. Such proceedings were had in this suit, that ultimately, two of the heirs of Tarlton, the others consenting, obtained the title to the fifty two acres mentioned in the bond of Combs, from the heirs of Nall. Tarlton and Nall both died before the contest as to the title was terminated, and their heirs, by revivor, brought the dispute to an end. The bond of Combs for a title was exhibited in the original bill, and made the foundation upon which Tarlton's claim to the fifty two acres rested.

Since the decree for a title, and since the execution of deeds in pursuance of the decree, the administrator and administratrix of Tarlton instituted their action of covenant, upon the bond of Combs, assigning breaches in his nonconveyance of the title, according to his covenant, and in his entire destitution of title. They obtained a verdict and judgment for nine hundred and seven dollars and fifteen cents: to reverse which, Combs prosecutes a writ of error.

Upon the death of Tarlton, who did the bond of Combs belong to? Did it pass to the administrators, or go to the heirs? The proper answer depends upon the time when the covenant was broken. If broken in the life time of the obligee, real covenants go to the administrator; otherwise to the heir. Abney vs. Brownlee, 2 Bibb, 170; Hutcher vs. Galloway's Executors Ib. 180; Pawling vs. Speed's Executor, 5 Mon. 582. The covenant of Combs is of that description denominated real, according to the foregoing authorities.

The covenant of Combs was broken in the life time of Tarlton, and hence his administrators, and not his heirs, are entitled to it. Tarlton, by the institution of his suit in chancery, manifested a disposition to coerce a specific execution of the contract by obtaining the title. But such manifestation cannot change the settled principles of the law. It is not like the case of Dawson &c. vs. Clay's heirs 1 J. J. Mar. 168, where a devise of land, held by bond, is supposed to control the power which the administrator with the will annexed would otherwise possess.

Upon the death of Tarlton, the suit instituted by him was revived in the names of his heirs. His personal representatives were no parties to the suit. Conceding that a contract for land, violated in the life time of the obligee, may be specifically executed in favor of the heirs, when the administrator consents, or even against his consent, when the rights of creditors would not thereby be prejudiced, still it is indispensable that the administrator should be a party to the proceeding which divests him of a legal right, and in effect transfers the obligation to the heirs. As the covenant of Combs belonged to the defendants in error, and as they were not parties to the suit in chancery, the decree cannot furnish any defence to this action.

The only remaining question, of any importance, relates to the...