Golden v. Cornett

• Decision Date: 17 June 1913
• Citation: 157 S.W. 1076,154 Ky. 438
• Parties: GOLDEN v. CORNETT et al. [d]
• Court: Kentucky Court of Appeals

157 S.W. 1076

154 Ky. 438

GOLDEN v. CORNETT et al. ^[d]

Court of Appeals of Kentucky.

June 17, 1913

Appeal from Circuit Court, Perry County.

Action by William M. Cornett and others against John E. Golden who filed a cross-petition. From a judgment for plaintiffs defendant appeals. Reversed and remanded with directions.

S. M Ward, of Hazard, and W. W. Belew, of Johnson City, Tenn., for appellant.

Wootton & Morgan, of Hazard, for appellees.

LASSING J.

W. M Cornett and his wife, Evaline Cornett, executed to John E Golden the following contract of sale for a tract of land lying on Leatherwood creek in Perry county, Ky.: "We, Wm. M. Cornett and Lina Cornett his wife, hereby sell to John E. Golden, for the sum of $10.00 per acre the land herein described and we agree to convey said land and the fee simple title thereto to him by deed of general warranty and free from any lien, defect or incumbrance. Lying on Leatherwood Creek in Perry County, Kentucky, and bounded: [Here follows description of lands.] We agree to furnish to said Golden without delay the title papers for said land, and to assist him in abstracting and showing the condition of the title to said land, and as soon as the title shall be shown to be perfect in us, by complete chain of documentary and recorded conveyance, the said Golden is to have the acreage ascertained by a competent surveyor, and when all this shall have been done we bind ourselves to execute and deliver to said Golden such deed as is herein described, and then he is to pay us the purchase price aforesaid per acre, and we will thereupon surrender possession of said land to him. We agree to do no damage to any of said land or anything upon it, and not to cut any timber upon it. It is agreed that the work in ascertaining the acreage, perfecting the title and making the conveyance shall be done before December 1, 1907." No steps were taken by either party looking toward ascertaining the acreage or examining the title before December 1, 1907, the time specified in the contract.

In November, 1910, W. M. Cornett instituted suit in the Perry circuit court against John E. Golden in which he sought to have the writing or deed canceled and adjudged of no binding force or effect. In May, 1911, Golden answered, and, in addition to denying the material averments of the petition, sought to have the contract specifically performed. His answer was made a counterclaim. In February, 1912, he filed an amended answer and counterclaim and made it a cross-petition against Evaline Cornett, the wife of W. M. Cornett, and the Ford Lumber & Manufacturing Company. In this amended answer, in addition to denying the material averments of the petition, he alleged that at the time of the execution and delivery of the contract of sale to him, set out above, he paid to W. M. Cornett the sum of $200 as a part of the purchase price of said land; that neither W. M. Cornett nor Evaline Cornett, his wife, had at any time furnished or offered to furnish to him their title papers to said land and had not offered to assist him in abstracting the title or in showing the correct number of acres in said land; that he had been ready, able, anxious, and willing, at all times since the execution and delivery of the writing to him, upon receipt of the title papers, to assist in showing the condition of the title thereto and to have the land surveyed, and to perform all the obligations imposed upon him by the contract; and that, by reason of the failure of the said W. M. Cornett and his wife to furnish him their title papers, he had been delayed in discharging the obligations which the contract imposed upon him. He asked that the contract be carried out according to its terms. He further pleaded that, since the execution of the contract W. M. Cornett and his wife had conveyed, or attempted to convey, the land which they had sold to him to the Ford Lumber & Manufacturing Company, and asked that said company be made a party defendant, which was done. In a reply plaintiffs traversed the affirmative matter set out in the original answer and counterclaim. Proof was taken, and the case submitted upon the pleadings and proof. The court was of opinion that plaintiff was entitled to the relief sought and so adjudged. The defendant appeals.

A construction of the writing is necessarily involved in a determination of the rights of the parties to this litigation. It is insisted by appellees that it is merely an opinion, by which appellant was given the right to buy the land at the price named therein, at any time prior to December 1, 1907, and that, not having exercised such right within the time prescribed, any rights which he had thereunder were lost to him. On the other hand, appellant insists that this is an absolute contract of purchase and sale, that he paid, on the day it was executed, $200 of the purchase money, and that his failure to cause the land to be surveyed and the acreage ascertained within the time prescribed, to wit, prior to December 1, 1907, was due alone to the fact that appellees did not furnish him with their title papers or assist him in ascertaining that they had title to the land which they had sold and agreed to convey.

Looking to the writing itself which, in the absence of any charge of fraud or mistake in its execution, must be accepted as expressing the contract between the parties, we find that it has all the essentials...