Hennessy v. Bacon

• Decision Date: 10 November 1890
• Citation: 11 S.Ct. 17,137 U.S. 78,34 L.Ed. 605
• Parties: HENNESSY v. BACON et al
• Court: U.S. Supreme Court

137 U.S. 78

11 S.Ct. 17

34 L.Ed. 605

HENNESSY v. BACON et al.

November 10, 1890.

It was adjudged below (35 Fed. Rep. 174) that the appellees, Bacon and Rogers, each owned in fee an undivided one-fourth, and the appellant, Hennessy, an undivided one-half, of certain lands in Washington county, Minn., and that partition thereof be made between them upon that basis. Of this decree the appellant complains, his contention being that he holds the legal title to an undivided half of the lands, and that the appellees should be required to surrender to him the title to the other half.

It appears that the lands originally belonged to George N. Chittenden, of Illinois, and that by written contract of date March 27, 1882, he sold them to Bacon, agreeing to convey to the latter, his heirs and assigns, 'by a good and sufficient deed of warranty, on or before the 27th day of June, 1882,' upon the punctual payment of the consideration, $4,400, at such time as Chittenden should execute a sufficient deed of general warranty. The contract provided that, if Bacon failed to pay the consideration, then the contract should be void, 'time being of the essence of this agreement.'

On the 27th of June, 1882, Bacon, his wife uniting with him, for the consideration of $500, (of which $100 was paid in cash,) assigned and transferred to Hennessy all his right, title, and interest in the agreement with Chittenden. The contract of assignment provided that Hennessy should receive a good, clear, and perfect title to the lands through a good warranty deed, with usual covenants, running from Chittenden and wife to Hennessy, or from Bacon and wife to Hennessy, if it should be thought proper to have Bacon and wife take title from Chittenden; also that Hennessy should pay to Bacon the remainder of the $500 upon receipt and only upon receipt, 'of such title through such deed to said lands, or upon the said Hennessy accepting a deed of warranty' from Chittenden or Bacon. If Hennessy did not receive such title on account of an incurable defect in the title or other cause, the deposit made by him was to be refunded.

On the day of the execution of the contract between Bacon and Hennessy, the latter made a tender of $4,400 to Chittenden's agent residing in St. Paul, in fulfillment of the contract of March 27, 1882, and demanded a conveyance in accordance with its terms. Hennessy was informed before making the tender that Chittenden had not executed the required deed, and it was made then only to preserve his rights under the contract. Shortly after the tender, Chittenden left with his agent a deed, in proper form, to be delivered upon the payment of the price of the land, and of this fact notice was promptly given to Hennessy and Bacon. Hennessy received in the mean time an abstract of the title, and, discovering therefrom that the record did not show a clear, unincumbered title in Chittenden, he sent to the latter's agent a memorandum of the defects therein appearing of record, and demanded that those defects be remedied. The agent wrote twice to Hennessy, at Dubuque, Iowa, where he resided, urging him to give attention to the matter, stating in a letter of date of November 6, 1882, that unless some understanding was soon reached he would return the deed to Chittenden, who would probably decline to carry out the sale. Under date of November 16, 1882, he again wrote to Hennessy, as follows: 'Yours of the 15th inst. received, in answer to a previous letter. You instructed me to see Mr. Horn. I immediately saw him, and satisfied him as to some of the objections, consulted him as to others, and left the papers with him. He expressed the wish to see you about the matter, in order that he might inform me directly and positively what further would be required to make the title good. I have sought in every way since you went into this transaction to obtain an interview with you, or some one authorized to act for you, in order to arrive at something definite, and have found it exceedingly difficult to do so. Although instructed to refer me to Mr. Horn, Mr. Kavanagh did not do so until I wrote you, and now that I have interviewed Mr. Horn I find it difficult to reach any result. I am not accustomed to that way of doing business, and cannot say I particularly appreciate it. I would suggest that the best and quickest way to come to some definite understanding about the matter is for you to meet Mr. Horn and myself at such early time as may be designated by you. Unless this is done by Monday next, (Nov. 20,) I shall return the deed (which I hold ready for delivery to you) to Mr. Chittenden, and it is doubtful whether he will carry out the same. Allow me to suggest it is part of your manifest duty not to interpose interminable delays to the settlement of the matter, and that if you will appoint the above meeting, or designate Mr. Horn or some other person who can act for you in your absence, this transaction can speedily be finished.'

The evidence is conflicting as to what passed between the parties after that date; but it is certain that the deed from Chittenden remained in the hands of his agent for more than three years, and that Bacon repeatedly urged Hennessy to indicate more distinctly than he had done the nature of his final objections to the title, or give up his contract of purchase. Hennessy contended, not only that Chittenden's agent well understood the defects in the title, but that they should be remedied. During all that period the land were appreciating in value, and by the fall of 1885 were worth more than $30,000. Finally, at the suggestion of Bacon, Rogers determined to buy them, the understanding being that Rogers was to make the purchase, allow Bacon, as commissions, the difference between...