Taylor v. Porter

• Decision Date: 19 October 1833
• Citation: 31 Ky. 421
• Parties: Taylor v. Porter.
• Court: Kentucky Court of Appeals

31 Ky. 421

Taylor v. Porter.

Court of Appeals of Kentucky.

October 19, 1833

FROM THE CIRCUIT COURT FOR CAMPBELL COUNTY.

Messrs Morehead and Brown for Appellant.

Messrs Marshall and Julian for Appellee.

OPINION

UNDERWOOD JUDGE:

In 1810, James McGinnis executed his bond to Porter, for the conveyance of lots Nos. 89 and 90, in the town of Newport " including the tan yard, dwelling house, currying shop and bark house, with all other improvements thereon, so soon as he should pay half the purchase money, to-wit, four hundred and fifty dollars."

Sale of town lots, with improvements, by executory contract; bill to enjoin an unpaid part of the purchase money, and rescind the contract.

In 1826, Porter filed his bill, charging, in substance, that McGinnis had only an equitable title to one of the lots and that he had no title whatever to the other; that McGinnis was dead; that Taylor had administered, and as administrator, had obtained judgments on the two last notes executed for a part of the purchase money; that he, Porter, had paid more than half of the purchase money, and that he could obtain no title. Wherefore, he prayed for an injunction, dissolution of the contract, & c.

The circuit court perpetuated the injunction; rescinded the contract, and decreed the payment of five hundred and fifty-three dollars to the complainant, Porter, (that being the amount of the purchase money paid by him,) subject to a deduction of three hundred dollars, as rent for the use of the premises while they were in the possession of Porter, who had abandoned the property, after using it about six years.

Decree of the circuit court.

From the above decree, Taylor prosecutes an appeal; and now insists, that it was erroneous to rescind the contract; but if that be right, then the circuit court erred in not compelling the appellee to account for waste, and the dilapidation of the improvements, as well as rent; and that the sum allowed for rent, is less than it should have been.

Appeal.

The contract was correctly rescinded by the circuit court. McGinnis was unable to make a title according to his contract. This seems to be admitted by Taylor; but he claims the right of controlling the lots in Newport, and disposing of them under authority derived from the original proprietor of the town; and an effort is made by him to compel Porter to accept the title through him and to pay the purchase money. The principle is unknown to this court, which will allow one man to substitute himself, as the vendor, in place of another, against the will of the vendee. The fact that Taylor had administered on the goods and chattels of McGinnis, can not give him the right to substitute himself for McGinnis in the fulfillment of his contracts for land, by conveying the title directly to Porter. The appellee is not bound to accept the title from any one except his vendor, or his representatives, acting in their representative character. The insolvency of McGinnis, in this case, can not change the rule. Taylor's warranty may be better than that of the representatives of McGinnis, but Porter is not bound to accept it, because he made no contract with Taylor.

Neither a stranger nor a vendor's administrator can take the place of a vendor, and require a vendee to pay purchase money and take the title, which the vendor is unable to make. The vendor, or his legal representatives, as such, can alone make such title as the vendee will be compelled to accept.

It is useless to enquire whether the title to the lots is vested in the trustees of Newport, or to determine in whom it abides. It is sufficient that McGinnis had no title, and that his representatives, as such, have proved no title, in order to comply specifically with the contract. It is too late now to require Porter to accept a title, if it were entirely unexceptionable.

When a vendee has made reasonable efforts to obtain the title, without success, has abandoned the possession, and filed his bill for rescission, it is too late to compel him to take the title, though ever so good.

The questions raised relative to rent, waste and deterioration of the property by its use and abandonment, are more important.

It seems that Porter abandoned the property after using it about six years. Before abandoning the property, he had made one or more ineffectual efforts to obtain the title from McGinnis, who had removed from the state. Failing to obtain the title, he abandoned the property without giving any notice of the abandonment to McGinnis, then a non-resident.

It is not clear, in what state of repair the improvements were left. In 1827, according to the proof, the improvements had gone to destruction. The dwelling house had not been in tenantable order for the preceding seven years. It may be inferred from the evidence, that the lots, in their unimproved condition, were not worth more than a sixth part of the sum Porter agreed to give for them. The improvements, the tannery, constituted much the greater part of the value of the property. Upon these facts the questions arise, whether Porter shall be compelled to pay rent, and if so, for what period of time; and whether he shall be compelled to account for the deterioration of the improvements.

Condition of the estate.

The great principle which governs the chancellor in rescinding contracts, is to place the parties, if practicable, in statu quo. If that can not be done, then he should come as near to it as possible, the nature and stipulations of the contract considered. If in this case, Porter had paid all the...