Sproule v. Winant's heirs , 23 Ky. 195 ( 1828 )

Judge Owsley

delivered the Opinion of the Court.

Absalom Bridges gave his bond or covenant without penalty, to convey a tract of land to William Miller and Ralph Lilburn.

Decree for a conveyance. In the assignment of bond for land, it is understood the assignee, immediate or remote, shall take a conveyance from the obligor, expressing the consideration the obligor received and not what the assignee paid. Decree for a conveyance in favor of an obligee whose obligor held the bond of the holder of the title by assignment.

Lilburn assigned this bond, or his interest therein, to his co-obligee, Miller; Miller assigned the whole bond to Oliver Sproule.

Sproule gave his bond to convey the same land to the heirs of John Winant, naming each heir, and bound himself to make the title, so soon as he could get a title to the land from Absalom Bridges.

The heirs of Winant filed their bill to compel a conveyance, and charge the title to be in Bridges; and that Sproule never took any steps to get it from Bridges, for the purpose of fulfiling his contract with them. Sproule answered, insisting that he has not forfeited his bond, because he never could get a title from Bridges, on which event he was to convey.

The court below decreed in favor of the complainants, and various exceptions are taken to the decree by the assignment of error.

It does not appear what consideration passed from Miller and Lilburn to Bridges, for the land. The bond imports a valuable consideration, but how much is not manifest from the bond, or any part of the record. The consideration which passed from the complainants to Sproule, does appear.

The court decreed that both Bridges and Sproule should unite in a joint conveyance of the land — the deed expressing the consideration which passed between the complainants and Sproule. This is incorrect. For the consideration for which Bridges ought to be bound, may be far less than that between the complainants and Sproule; and as the complainants have not shewn it to be as great, and have contented themselves without ascertaining what it is, it follows that Bridges ought to be directed to convey to Sproule by deed, with general warranty, reciting the sale bond which he had made, and the bond which he had given as the consideration, leaving the precise sum open and subject to inquiry, if at any time hereafter, Bridges shall become liable to an action on the warranty. This warranty, it is true, after the conveyance of Sproule to the complainants, will belong to them; and incase of eviction, they may sue on it as assignees thereof, instead of bring-* ing their action against Sproule on his warranty. But in said action the value of the land as fixed by the consideration between Bridges and Lilburn and Miller, will be the proper criterion of damages, and not that fixed between Sproule and the complainants. While the bond of Bridges was in market, and passed from assignor to assignee, each assignee must be understood to have agreed to take a conveyance according to the consideration passing from obligee to obligor, instead of that passing from assignee to assignor. It follows, therefore, that Bridges ought to he compelled to convey to Sproule, according to the consideration which he has received; and Sproule to the complainants, according to the consideration given to him; and it was erroneous to direct a joint conveyance.

When the bond for land is to the wife, the decree ought to direct the conveyance accordingly, and not to the husband. In a decree for specific performance the chancellor ought'at once to render a final de» cree for a conveyance, and afterwards if not complied with, appoint a commissioner by decretal order, and so have the decree executed. One who covenants to convey when he gets the title Irom another, must use the proper means to obtain it.

It may also be remarked, that the conveyance to some of the female complainants, has beep directed to be made to their husbands, when the bond was to them alone. The conveyance ought to be directed to the wife only, leaving the husband to take his right under the marriage. .

The court, instead of decreeing that the parties should convey by a final decree, and then afterwards on their failure, appointing a commissioner, if applied for, by a decretal order, has fallen into a common error, of which we have had often to complain. The decree was made interlocutory, and directed the defendants to convey by a certain day, and if they failed, a commissioner should convey, leaving with the commissioner, the right to judge of the failure. The court then retained the cause till the commissioner ascertained the failure, and reported the conveyance, which the court approved, and then made a final decree settling the costs.

Sproule complains that he was charged with costs, when Bridges never conveyed to him, and he was only bound to convey when Bridges conveyed. We do not see how to release him from costs. He was bound to convey so soon as he could get a title from Bridges. He has not shewn that he attempted to get one, or that there was any obstacle to his getting one, if he had tried it.

Costs. Turner, for plaintiff; Caperton, for defendant.

Decree reversed with costs, and cause remanded for such decree, and proceedings to be had as shall conform to this opinion.