Sefton v. Roach

SMITH, J.

The suit is for partition of the land described in the complaint, and by an interlocutory decree there was awarded to plaintiff and to defendant, as successor in interest of Henry Roach, deceased, to each an undivided one-half of the land. The defendant appeals from the judgment, and from an order denying her motion for a new trial.

It appears from the findings and the stipulation of facts appearing in the bill of exceptions that, August 8, 1891, the land in question was vested in the plaintiff, who on that day conveyed to Henry Roach an undivided one-half interest therein; and on the same day a contract in writing was executed between Sefton and Roach, wherein, after reciting that the parties “are the owners one-half

each”

of the property in controversy, occurs the following:

“Now, therefore, for the purpose of managing and disposing of said property, it is hereby agreed between the parties hereto, that the said property shall not be sold for less than $30,000 prior to the 1st day of January, 1892, and that thereafter the price of said property is to be advanced $2,000 each and every six months until $40,000 is reached, and there

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after such advance shall be made as may be agreed upon between the parties hereto.

“ It is further agreed, that whenever a sale is effected within the figures above mentioned, then both parties hereto are to execute to the purchaser a deed conveying all their interest in said land. That neither party is to sell or dispose of his interest in said property without the consent of the other, and to act and exercise the highest good faith the one towards the other in the management and control of said property. . . .

“It is further agreed, that upon the sale of said property there shall be paid to the said Henry Roach out of the first proceeds the sum of $2,000, and that thereafter all sums received from the sale of said lands shall be divided equally between the parties hereto, share and share alike. ’ ’

It is claimed by the appellant that under and by virtue of this agreement Roach “acquired and became vested of a first and prior interest in and to (the land in controversy) to the extent of two thousand dollars over and above an undivided one-half interest therein, and that in equity and good conscience there should first be allotted and set apart to these defendants sufficient of said above-described lands, at their present marketable cash value, to equal the full sum of said two thousand dollars.”