Peasley v. Hart

McKee, J. At the commencement of the action of ejectment out of which this case arises, the defendant was in possession of the demanded premises, under a written contract between himself and the grantor of the plaintiff for a conveyance of the legal title.

The case is this: In the year 1878, one Ensey applied to purchase from the government of the United States a tract of public land. At the same time the defendant had pending an application to purchase a part of the same land, of which he was then in possession, and had been for several years before, claiming it as his own. To avoid a contest between the two applicants, it was agreed that the defendant would withdraw opposition to Ensey’s application, and that Ensey, in consideration thereof, when he procured the patent for the land from the. United States, would convey to the defendant the legal title to his part of the land, upon payment by him of the government price per acre, and a just proportion of the expenses incurred in procuring the patent. Cotemporaneously with the execution and delivery of this agreement, Ensey executed and acknowledged a deed which purported to convey the land to the defendant, and was to be delivered to him after the issuance of the [523]patent, upon payment of the purchase money and his proportion of expenses, according to the terms of the contract.

On the 15th of September, 1882, Ensey obtained his patent; but, instead of notifying the defendant of its issuance, or of the amount of money paid for the land, and of the expenses incurred in procuring the patent, and without tendering the deed which had been executed to be delivered on payment of the money, he conveyed the defendant’s land by deed to the plaintiff

When the plaintiff received his deed, he took it with knowledge of the fact that defendant was in the actual possession of the land, and (according to the averments of the cross-complaint, which are not sufficiently denied by the plaintiff’s answer to raise an issue as to them), with notice that the defendant claimed title to the land under his agreement with Ensey, Having thus obtained the dry legal title to the land with notice of the defendant’s equitable right, the plaintiff was bound by the agreement between his grantor Ensey, and the defendant, to convey to the defendant the legal title; and equity will compel him to convey, unless the defendant has repudiated the agreement or refused to perform it, or there are circumstances which would render it inequitable to compel performance.