Marshall v. Caldwell
Before: Rhodes
Synopsis
Construction of Written Contract—Sale of Land.—Where a party who owns hut an undivided one half of a tract of land enters into a contract by which he agrees that, upon the payment of the purchase money, lie will convey the whole of the land to another party, who is induced to regard him as the owner of the entire premises, the vendor is deemed to have sold not only his own interest in the land, but the whole of the land.
Idem—Allegation in Complaint.—In the face of such an agreement, the vendor will not be permitted to aver, if he brings an action to recover possession from the party holding under the contract, that he sold less than the whole title to the land, unless he can also aver that the written contract, by reason of fraud, mistake, or the like, does not show the real contract.
Bight to Bescind—Specific Performance.—In the case stated, upon a discovery by the vendee that the plaintiff held only the undivided half of the land, he is entitled to proceed at once to rescind the contract; or he may proceed to have the contract specifically enforced to the extent of the plaintiff’s interest in the land.
Bestoration of Possession—Bents and Profits.—In proceeding to specifically enforce the contract, it is not incumbent on the defendant to restore, or offer to restore, the possession to the plaintiff; nor is the plaintiff entitled to any portion of the rents and profits accruing since the contract was made.
Obligation of Vendor to Convey.—If the vendor in such a case is unable to perform the entire agreement, and can convey only an undivided half of the land, he may be compelled to convey that interest.
Obligation of Vendee to Tender Payment.—To entitle the vendee in the case stated to a decree compelling the vendor to convey his undivided half of the land: 7teld, that it was necessary for him to tender as the purchase money only one half of the contract price.
By the Court, Rhodes, C. J.: The plaintiff sues in ejectment, and relies for a recovery on his legal title. The defendant Forrest, the vendee of Caldwell, sets up in his cross complaint a contract made between the plaintiff and Caldwell, by which the plaintiff sold to Caldwell the premises in controversy, and covenanted to convey the same to him upon the payment of the purchase money therein mentioned; and alleges that he entered into possession of the land under the contract; that the plaintiff falsely and fraudulently represented that he owned the whole land; but that in truth he owned only the undivided half of it; that he offered to accept a deed from plaintiff of so much of the land as the plaintiff was the owner of, and to pay the plaintiff therefor a proportionate [614]part of the purchase money; and-he prays for a specific performance of the agreement as to the undivided half of the land.
The contract, as already remarked, shows that the plaintiff" sold the whole land, and not, as he now contends, only his interest in the land. True, he could not convey any greater interest in the land than he held, but the contract recites a sale of the entire title. The covenants which, by the terms of the contract, are to be inserted in the deed, do not limit the extent of the interest attempted to be sold, for upon a sale in fact of the entire title, the vendor may restrict the covenants, whether express or implied, in such manner as the parties may agree. Uor indeed will the plaintiff" be permitted to aver, in the face of the agreement, that he sold less than the whole title to the land, unless he can also aver that the written contract, by reason of fraud, mistake, or the like, does not show the real contract.
Upon the discovery hy the vendee, that the plaintiff held only the undivided half of the land, he was entitled to proceed at once to rescind the contract; but he was not obliged to adopt that course. He was entitled- to proceed, as he has done in .this case, to have the contract specifically enforced to the extent of the plaintiff’s interest in the land. The discussion, therefore, of the rules of law which may be applicable, when the vendee elects to rescind the contract on account of the fraudulent representations of the vendor, are immaterial, for the vendee elects, not to rescind, but to affirm the contract, so far as the plaintiff is able to perform it.
It does not expressly appear, that at the time of the sale, the plaintiff had the possession of the land, but as Caldwell acquired the possession under the contract, it may be assumed, as both parties seem to concede, that the plaintiff then held the possession. Whatever possession he may have had, and whatever may have been the source of his right of
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