Reed's Heirs v. Hornback

• Decision Date: 06 October 1830
• Citation: 27 Ky. 375
• Parties: Reed's Heirs v. Hornback.
• Court: Kentucky Court of Appeals

27 Ky. 375

Reed's Heirs v. Hornback.

Court of Appeals of Kentucky.

October 6, 1830

Specific Performance. Covenant Running with Land. Special Warranty Deeds. Eviction. Judgment.

ERROR TO THE BOURBON CIRCUIT; RICHARD FRENCH, JUDGE.

Talbot for plaintiff.

Mills and Brown, for defendants.

OPINION

UNDERWOOD JUDGE:

This record presents the following case. In 1792, John Reed, the ancestor of the appellants, conveyed to Samuel Hornback two hundred and five acres of land, for the consideration of £ 110. In 1804 George Smith recovered in an action of ejectment, the land, a part thereof so conveyed by Reed to Hornback. Daniel Hornback, Samuel Hornback, Adam Hornback and John Reed, were admitted as defendants in the action of ejectment instituted by Smith, and the recovery was had against them.

In 1811, Samuel Hornback executed a deed, conveying to Adam Hornback, seventy-seven acres, part of said two hundred and five acres. The deed from Reed to Hornback, contains this clause, " If in case, any part of the land above mentioned should be taken by any other claim, the said Reed obliges himself to furnish the said Hornback with land of equal quality, and in as convenient a part of the county, and he the said John Reed for himself, his heirs, executors administrators and assigns doth warrant and forever defend the said land, and premises above mentioned, sold agreebly to the above contract." It seems that the defendants in the ejectment, or a part of them enjoined the judgment against them. How this injunction was finally disposed of, does not satisfactorily appear, because the record is not given although referred to, nor do we conceive it to be very important in this case.

In February, 1819, Adam Hornback and Weathers Smith, who had become entitled to the land recovered in the ejectment, made an agreement, by which Hornback was to give Smith possession of twenty-eight and a half acres of land, recovered by said Smith, in the Bourbon circuit court, in November, 1818. This last date may have been the time when the injunction was dissolved, as to part of the land recovered in the action of ejectment. The demise laid in the declaration, expired the 10th of June, 1819. Under the foregoing circumstances, Adam Hornback, the appellee, filed his bill against Reed's heirs and administrators, praying, that they might be compelled to set apart twenteight and a half acres of land, out of the real estate descended, and convey the same in satisfaction to the covenant of their ancestor contained in his deed to Samuel Hornback; and if that could not be done then, that the representatives of Reed might be compelled to make compensation for the lost land. The court decreed, that the defendants should set apart twenty-eight and a half acres of land in the county, out of the lands descended, deliver possession, and convey the same to the appellee. To reverse this decree, the appellants have brought the case to this court.

Various questions are made in the arguments of counsel. Such only will be noticed as are deemed important.

It is contended in the first place, that a court of chancery had no jurisdiction. The bill does not state any circumstances upon which the jurisdiction of the chancellor ordinarily attaches, beyond the design manifested to enforce specifically, that part of the covenant which stipulates to substitute or furnish other lands in the place of so much as may be taken by another claim. We are of opinion, that the stipulation is not of that character, which a court of chancery can or ought to enforce specifically. There can be no specific execution of a contract, in respect to land, unless the parties have described and identified the particular tract, which is to pass from one to the other; or unless the contract furnishes the means of identifying the land to be conveyed with certainty. In this case, no particular tract entered into the contemplation of the parties, as the substitute to be given, in case the land conveyed or any part of it should be lost. To attempt the enforcement of such a contract specifically, would be to indulge in a latitude of discretion, which we have not known allowed in any similar case heretofore adjudged.

Specific execution of contract will not be enforced, unless parties have described and identified the particular tract of land which is to pass, or unless the contract furnish the means of identifying with certainty the land to be conveyed.

If Reed had many tracts of land in the county of Bourbon, out of which shall the twenty-eight and a half acres be taken? Who shall judge whether the land is of equal quality, and as conveniently situated? Suppose Reed or his heirs by descent had but one tract, and that should surround Paris. Its quality might be superior and its situation more desirable in the opinion of nine hundredths of the population of the county. Shall Reed's heirs convey the twenty-eight and a half acres out of this, their only tract greatly superior in soil and situation, and much more valuable than that which was lost? Suppose Reed's heirs have no lands which they could substitute of equal quality, and situated as...