Clarkin v. Lewis

Cope, J. delivered the opinion of the Court—Field, C. J. concurring. Truett and Jones contracted with the defendant for the purchase of certain real estate, paying the purchase money and taking an obligation for a conveyance within five days thereafter. The plaintiff sues as assignee of Truett and Jones, and seeks to recover back the purchase money, on the ground that the defendant has failed to perform his part of the contract. The Court below decided against him, holding that the contract had been performed, but afterwards, granted a new trial, and the defendant appeals.

[636]It is admitted that no conveyance was executed within the time specified, and it is contended that this is a conclusive answer to the appeal. It appears, however, that Truett and Jones went into possession of the property, and continued in possession of it, receiving the rents and profits, after the time mentioned in the contract had expired. During the period of their possession, frequent applications were made for a conveyance, and two conveyances, executed at different times, were tendered to them as complying with the contract. These conveyances were rejected as insufficient, but no objection was made as to the time of their execution; and under the circumstances, this objection must be deemed to have been waived. It is claimed by the defendant that the time fixed was not an essential ingredient of the contract, but the view taken supersedes the necessity of a decision on that point.

The more important questions arise upon the conveyances themselves, it being contended that neither of them sufficiently describes the property, and that they are not so executed as to pass the title. The evidence in regard to the description is vague and unsatisfactory, and the Court below must upon reflection have considered it insufficient to justify the finding, or at least of such a character as to render a new trial proper. The particular ground upon which the Court acted does not appear; but it is fair to assume this as one of the grounds, and the rule by which we have always been gov.emed in such cases precludes interference on our part.

The position that the conveyances are not sufficient to pass the "title rests upon the ground that the property is a homestead, the ■conveyances being signed by the defendant alone, who is a married man. If the property is a homestead, this, undoubtedly, is a valid objection to the conveyances; but as the case must be retried, it is unnecessary to consider the subject upon the evidence now before us.