Waynick v. Richmond , 11 Kan. 488 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

The plaintiffs in error brought their action in the district court of Franklin county upon a bond given by Richmond, one of the defendants in error to Jacolj Way-nick. The bond recited that Richmond was held and firmly bound unto Waynick in the sum of $247.50, and was absolute in its terms so far as the obligatory part is concerned. The condition reads thus-: “The condition of this obligation is such, that if the above bounden John C. Richmond, his heirs, executors, or administrators, shall sell and truly execute or cause to be executed a good and sufficient deed of conveyance to said Jacob Waynick, his executors, administrators or assigns, covering the northwest quarter of -the northeast quarter of section three, etc., then this obligation to be null and void, otherwise of full force and virtue.” This bond, was executed September 18th, 1864, and this action was commenced January 16th, 1872. It was admitted by the pleadings that Richmond owned the land described in the bond on the day of its date, that he had never conveyed to Waynick or his heirs, but had conveyed to other parties through whom the legal title had passed to his co-defendants. It was alleged in the petition that Waynick had paid the purchase-money in full for the land, and performed all the conditions on his part, and that he had since died and that the plaintiffs were his heirs. These facts were denied by the answers. The prayer in the petition was for a decree for specific performance, and such further relief as the plaintiffs might in law or equity be entitled to. On the trial plaintiffs proved that they were the heirs of Jacob Waynick, and that he had died intermediate the date of the bond and the filing of the petition, and then rested. Defendants interposed a demurrer to the evidence, which was sustained, and judgment entered in their favor for costs. Was there error in this ruling?

The instrument sued on, though in form a bond with a condition, is in legal effect an agreement to convey. “A bond for money with a penalty for not doing a certain thing will be held to be a contract to do that thing:” 2 Parsons on Contr., 515; Dewey v. Watson, 1 Gray, 414; Plumbsett v. M. E. Society, 3 Cranch, 561. Being a contract in writing it imports a consideration: Gen. Stat., 183, ch. 21, § 7. The agreement then is as though it read, “For value received I hereby agree to convey,” etc. Ordinarily, some conditions of payment and some time of conveyance are specified in the bond; but here is an absolute agreement to convey without any conditions of time or payment. A reasonable time had elapsed for performance by the obligor. No demand was' necessary, as Richmond had already conveyed to other parties. The other defendants, the holders of the legal title, admit the record of the bond, and therefore notice of the plaintiffs’ interest. Under this state of the case we think the plaintiffs were prima facie .entitled to a decree. There is, it is true, a discretion in courts of equity whether to decree a specific performance, or to remand the party to his action for damages for breach of contract, and this though the existence of the contract be beyond doubt, and its terms clear. An unfair advantage, a gross inadequacy of consideration, are either of them sufficient to justify the exercise of this discretion, and prevent a decree. Yet these things are matters of defense. In Wedgwood v. Adams, 6 Beav., 605, Lord Langdale said, “I conceive the doctrine of the courts to be this, that the court exercises discretion in cases of specific performance and directs a specific performance unless it should be what is called highly unreasonable to do so.” And Sir William Grant, in Hall v. Warren, 9 Ves., 608, said: “Supposing the contract to have been entered-into by a competent party, and to be in the nature and circumstance of it unobjectionable, it is as much of course in this court to decree a specific performance as it is to give damages at law.” There is nothing in this ease tending to show any bad faith or unfairness in the contract, or any inadequacy of consideration, and hence we think the plaintiffs were prima facie entitled to a decree, and the demurrer to the evidence was improperly sustained. The judgment of the district court will be reversed, and the case remanded for a new trial.

All the Justices concurring.