Gibbs & Hardin v. Stone , 23 Ky. 302 ( 1828 )

Chief Justice Bibs

delivered the opinion ol the court.

Gibbs and Hardin declared against Stone, upon a covenant to convey Stone’s moiety of a certain tract of two thousand acres of land, patented to him and William Roberts, the conveyance to be “by a special deed, to he made when called for.” The declaration alleged a special request at the defendants residence, on the 13th July, 1824.

The defendant took issue upon the demand alleged.

On the trial, the plaintiff, to prove the demand, introduced a notice, addressed to Stone, and delivered by Jesse McDonald to the defendant, on the 13th of July, 1825, at his house, in these words and figures : — “We now call on you for a deed for the one half of two thousand acre survey of land in Washington county, patented to yourself and William Roberts, agreeable to a bond we hold on you for the same. July 13th, 1825.

"Benj. Gibbs.

“Mark Hardin, sen.”

Instruction, Inadeclarationonacovvey^and orT" request, the allegation of a teriai^and may be traversed by-p ea ‘ In such plea ? tender of a. veranee?"* not necessary Notice in writing, sent in his absence to obligor, calling on him for a deed for land, obligor was bound to make on request, is not sufficient, without the bearer was authorized to receive the deed and deliver the bond, or make an acquittance.

The plaintiff’s witness, who proved that he servcd the notice, also deposed that he had no authority, either from Gibbs or Hardin, to receive the deed; he had not the bond; but informed the defendant that Gibbs was in the neighborhood, about two miles off; neither of the plaintiffs were present at the delivery of the notice.

The court instructed the jury, that to make the demand a good one, the person so delivering this notice, ought to have had the bond with him, and an authority to receive the deed. To this instruction the plaintiff excepted.

The jury found for the defendant.

According to the decisions in Bridges vs. Hardgrove, Prin. Dec. 153; and Vanarsdale vs Craig, Ib. 321, a special request, precisely alleged, was essenfial upon assigning breach of the covcnaut to convey land on request. So, also, in Shepherd vs. Hubbard, 1 Bibb, 494; Worley vs Mourning, 1 Bibb, 254; Stafford vs. Trimble, same, 323. In this latter case, the covenant was to convey on request; the court decided that the time and place of request ought to be certainly and precisely alleged. So, also, in Sloan vs. Griffeth, Hard. 9. These decisions concur in this, that the special request, precisely alleged, of a conveyance contracted to be made on demand, is a substantial averment, the omission of which is fatal after judgment by default, or after isssue and verdict; consequently a traversable averment. The plea traversing the special request declared upon, was therefore allowable.

But it has been argued, that this plea should have been accompanied by a tender of the deed in court. This was not necessary; for if no cause of action had accrued at the suing of the writ, the failure of the defendant to tender a deed after suit instituted, could not by resilience, give the plaintiff cause of action at the teste of his writ.

The notice given in evidence, conferred no aufhority in itself to the person who delivered it, to demand or accept the deed, he had no authority to demand or accept it; he did nothing but deliver the notice, anti inform the defendant that one of the obligees was within two miles; he had not the obligation to surrender, upon delivery of the deed, and no authority to give an acquittance. The defendant, upon delivery of the deed, was entitled to have his’obligation delivered to him. The conveyance required the concurrent acts of the obligor to deliver, and of the obligees, or their attorney, to approve and accept the conveyance, and surrender the covenant to convey. The evidence, therefore, in no degree conduced to prove a lawful demand; and there is no error in the instruction given.

in such case the obligor must lookup the obligee, and cannot, by such notice, shift the duty off himself upon the¿ obligee. Wickliffe and Mayes for the plaintiffs; Rudd for defendant.

The act to be performed by the defendant, was transitory, and might have been demanded any where. But as the covenant was to convey when called for, the duty by the obligation was imposed upon the obligee to seek the obligor, wheresoever he could be found conveniently to make the deed. The obligee could not, by the delivery of this notice, shift this duty from himself, and impose upon the obligor the duty to seek the obligee, wheresoever he was to be found, and tender the deed.

It seems to this court, that there is no error, as the. plaintiff hath alledged. It is, therefore, considered by this court, that the judgment be affirmed, with costs.