Sprigg's Heirs v. Albin's Heirs
| Decision Date | 11 June 1831 |
| Citation | 29 Ky. 158 |
| Parties | Sprigg's Heirs v. Albin's Heirs. |
| Court | Kentucky Court of Appeals |
Specific Execution. Condition Precedent. Lapse of Time.
APPEAL FROM THE NELSON CIRCUIT; PAUL J. BOOKER, JUDGE.
Monroe and Crittenden, for appellants.
Hardin for appellee.
In 1792, Osborn Sprigg, the ancestor of the appellants, executed an obligation, conditioned to convey Sprigg's interest in a preemption of one thousand acres, on Murray's run, a branch of Cox's creek, and also the half of four hundred acres, granted in the name of Joseph Vinson to Richard Chenoweth, so soon as he paid £ 180, agreeably to two bonds of the same date. These bonds were for the payment of £ 90 each, the one due on the 1st of November, 1793 and the other on the 1st of November, 1794.
In 1793, Chenoweth executed an obligation conditioned to convey to William Albin, the ancestor of the appellee, five hundred acres of land on Murray's run, a branch of Cox's creek, by deed, with general warranty, within seven days from the date of the contract. It is not declared, in this obligation, that the land to be conveyed was the same which Sprigg, by the contract of 1792, was to convey to Chenoweth. That such was the case, is only to be inferred from the identity of description, and the fact that, in March or April, 1794, J. Cox laid off five hundred acres out of the aforesaid preemption for Albin, which, in the course of that year, or the next at farthest, he settled, claiming to hold the same under the obligation from Chenoweth. Sprigg was a citizen of Virginia, Chenoweth of Kentucky. The conclusion is almost irresistible, that Chenoweth could not have stipulated with Albin in good faith, to make him a deed of conveyance within seven days from the date of their contract, if the five hundred acres sold him, were to be made up of Sprigg's interst in the one thousand acres tract because, when he made that stipulation, he had no conveyance from Sprigg, and had paid no part of the purchase money; and there is not a particle of evidence conducing in the slightest degree, to show, that he had, at the date of his contract, any expectation of being able to procure the title in time to comply with it.
In 1816, the appellees filed their bill against the appellants, as the unknown heirs of Sprigg, and the heirs of Chenoweth, (who had previously died,) praying for a specific execution of the contract, and offering to pay whatever of the purchase money had not been paid. It appears, by subsequent amendments, that the land claimed by the original bill, was not the land called for, or embraced, by the covenant of Sprigg, or that of Chenoweth. The offer to pay the remaining purchase money was withdrawn, and it was insisted that the whole had been paid, and that deeds of conveyance had been made. The amendment, making these allegations, was filed in 1825, and it is very manifest, that the charges relative to the payment of the purchase money, and the execution of deeds of conveyance, are made, based upon the presumption arising from the length of posesssion by the appellees, and their ancestor.
It seems, that in August, 1795, Chenoweth paid £ 40 1 s. 3d. to L. Haff, which he credited on the bond of Chenoweth, which became due in Nov., 1793, Haff having been employed by Sprigg to collect both bonds. Chenoweth obtained this money from D. Omer, to whom he sold the Vinson tract. Omer being unable to procure a title, sued Chenoweth, and his surety M. Mayfield, on their title bond, and recovered. Mayfield paid part of the judgment, and thereafter instituted a suit in chancery in obtain from Haff the said £ 40, in whose hands it was likely to remain, because Sprigg refused to take it, unless the whole purchase money was paid, and Chenoweth refused to receive it back and cancel the contract. At least, such is Haff's answer to the bill of Mayfield, who made Sprigg and the heirs of Chenoweth defendants, as well as Haff. This suit was compromised by Haff paying to Mayfield the money, and taking a bond, with surety to indemnify Haff against Sprigg's or Chenoweth's claim to the money.
The boundary of the land laid off by Cox for Albin is not laid down on the connected plot, in such a manner as to exhibit the position of the various settlements made thereon. It however appears, from the proof and exhibits in the cause, that an elder grant in the name of William Mitchell, covers much the larger part of Sprigg's preemption of one thousand acres, and takes off three hundred and two acres of the land laid off by Cox for Albin, (the boundary of which contains five hundred and forty instead of five hundred acres,) upon which three hundred and two acres, the settlement made by Albin is situated. In 1815, Davis, as lessor of the plaintiff claiming under Mitchell's patent, succeeding in obtaining a judgment in an action of ejectment, against Edward Evans and Linney Albin, the widow of William Albin, Chenoweth's vendee. The declaration and notice were served on Evans and Mrs. Albin, in May, 1813, and during that year all the Albins moved from the land, and Evans states, that Mrs. Albin would not have defended the suit, but at his instance, with a view to obtain compensation for improvements. It may be inferred from the testimonny, that the tenants of some of the Albin family held possession, after the removal in 1813, up to the judgment of eviction in 1815; but the evidence on this subject is very indefinite, nor is it a matter of much consequence to the correct decision of the controversy.
William Norton entered upon the land in 1812, claiming adversely to Sprigg's preemption patent. In 1816, an action of ejectment was instituted against him by Sprigg's heirs, in which the latter obtained judgment of eviction in 1820, since which time Norton has held under them, having made a contract for the land at $12 per acre. It also appears that Sprigg's heirs acquired possession of part of the land, by their vendee, Watkins, as early as 1816, through Malon.
It is abundantly established by the evidence, that the appellees knew that Chenoweth claimed under Sprigg's title; and it is equally clear, that none of them ever pretended to hold the land under an executed contract. It is not shown, what was the consideration which Albin was to give or that...
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