Fugate v. Robinson , 57 Ky. 680 ( 1858 )

Chief Justice Wheat

delivered the opinion of the court.

Fugate and wife brought dheir petition in equity against Robinson, for the specific execution of a written contract, signed by all the par-ties, in which they had agreed upon the location of a corner, on the South Fork of Licking river, and the manner in which the division line between their lands, which adjoined, should be run from that corner.

Robinson demurred to the petition, and the court below sustained the defnurrer,, and gave Fugate and wife leave to amend. They offered an amendment, which was a paragraph in ordinary proceedings, for the recovery of the land lying between the once disputed lines; to the filing of the amended petition Robinson objected, and the objection was sustained, and Fugate and wife failing further to amend, their petition was dismissed by the court, at their cost. They asked and obtained leave to have the amendment offered by them made part of the record, which was done by an order of the court, and they have appealed to this court.

The petition sets forth a'good cause of action, and exhibited, as part thereof, a diagram showing the relative position of the lands of both parties, where each party had contended the dividing line between their lands run, and where tlje corner and line agreed upon by them, in the written agreement of compromise, were situated. The petition also averred that Robinson refused to abide by and perform the agreement, and threw every obstacle he could in the way of fixing the line according to the contract.

The agreement exhibited' was one intended to make peace between the parties, and such an one as the chancellor ought to delight in specifically carrying into execution.

When parties owning land adjoining have a oontrovery about their lines, and make a compromise and agree in writing upon a line, the chancellor will, when there hag been no unfairness, fraud, or mistake,compel a^pecifie performance of the agreement. (Slo. Equity,sc. 729.)

When the parties have, upon a compromise, agreed upon a boundary between their lands, and reduced the agreement to writing, and no unfairness, fraud, or mistake is complained of, in procuring the agreement, and one of the contracting parties refuses to abide by or perform the agreement, the court ought to compel him to perform it specifically. It is in vain to say to the complaining party, in such case, he might bring his action at law. The remedy at law Is not so effectual or complete as the proceeding in equity; for this reason the court should entertain the complaint of the party not in fault.

It is laid down in Story's Equity Jurisprudence, section 729, that an agreement to settle the boundaries between two estates will be specifically enforced. The case presented in the petition shows that complete relief at law could not be obtained; no deed could be procured at law, which the party might cause to be enrolled, and thereby have a durable memorial of his right to the land, which is his bjr the agreement exhibited in the petition. The court below could, through a commissioner, have ascertained precisely where the agreed corner on the bank of the South Fork of Licking river stood, and had the line run from there to the beeches, and so on, according to the agreement exhibited, and proper monuments placed to define and perpetuate the evidence of the rights of the parties. After this should have been done Fugate and wife might have been required to present in court their deed, properly acknowledged and authenticated, conveying and relinquishing all claim on the side of the agreed line, which, by the ageement, was Robinson’s, and then Robinson could have been required to convey to Mrs. Fugate all on her side of the agreed line.

We deem it unnecessary to notice the proceedings of the court any further than they relate to the original petition, as the action of the court upon that is not according to the principles and usages of courts of equity. __

The court below erred in sustaining the demurrer to appellant’s petition, and for this cause the judgment of said court is reversed, and the cause remanded for further proceedings not inconsistent with the principles of this opinion.