Jones v. Noble

• Decision Date: 19 September 1868
• Citation: 66 Ky. 694
• Parties: Jones v. Noble, & c.
• Court: Kentucky Court of Appeals

66 Ky. 694

Jones v. Noble, & c.

Court of Appeals of Kentucky.

September 19, 1868

1. " This instrument of writing is to certify that I have this day sold to J. R. Shivell a certain tract of land described in a deed which has been duly acknowledged in the Henry county court clerk's office, which deed is now in my possession, and which is to be delivered to said Shivell on the payment of two thousand dollars on the 25th of December, 1863.

J. B JONES."

Shivell died before December 25, 1863, no part of the money having been paid. Some time thereafter, his personal representatives, & c., offered to pay, and sued to recover the land or five hundred dollars, for which Jones had sold it above the price Shivell was to pay. Held--That they were not entitled to recover either the land or the five hundred dollars.

2. To enable either party to compel a specific execution, as a general rule, the contract must be mutually binding on each party. (Boucher vs. Vanbuskirk, 2 Marshall, 345; Allen vs. Roberts, 2 Bibb, 98; New on Contracts, 154.)

3. In a conditional sale of land, the payment of the price on a particular day being a precedent condition to the conveyance and surrender of the possession, time was of the essence of the contract, and the land cannot be recovered without the performance of the condition precedent.

APPEAL FROM HENRY COUNTY COURT.

PRYOR &amp BARBOUR, For Appellant.

S. E DEHAVEN, For Appellees,

CITED--

6 Mon., 366; 3 Mon., 321; Mason vs. Chambers.

OPINION

PETERS JUDGE:

In March, 1866, this action was brought by the personal representatives and heirs of J. R. Shivell, deceased, against appellant Jones and others, to enforce an alleged contract for the sale of a tract of land in Henry county, made by Jones in August, 1863, with their ancestor, and file a paper as the evidence of the alleged contract, with their petition in the following language:

" This instrument of writing is to certify that I have this day sold to J. R. Shivell a certain tract of land described in a deed, which has been duly acknowledged in the Henry county court clerk's office, which deed is now in my possession, and which is to be delivered to said Shivell on the payment of two thousand dollars on the 25th of December, 1863.

J. B. JONES."

It is alleged that Shivell died about the 1st of November, 1863, and, in consequence thereof, the purchase price was not paid or tendered to Jones on the day specified for payment; but that, in a reasonable time thereafter, the money, with the interest accrued, had been tendered to him, and the delivery of the deed demanded; that he refused to receive the money, and to deliver the deed; and that he had sold and conveyed the land to one Reese, and he had sold and conveyed it to one Miller, both of whom, it is alleged, had notice at the time of their purchases of the prior sale to Shivell. They pray for a cancellation of the deeds to Reese and Miller respectively, and a conveyance of the land to them; and if that cannot be granted, they pray that Jones shall be adjudged to pay them five hundred dollars, the amount he received from Reese more than he contracted to sell it for to their intestate.

Jones in his answer, admits the execution of the deed...