Wallingford v. Bassett's Admr. ( 1871 )

Opinion of ti-ie Court by

Judge Hardin:

The bond executed by Amos Bassett and Willitt and Clary and their wives to the appellant does not import a sale of the interests of Joseph Waring, Mrs. Johnson and the children of Mrs. Thompr son, deceased, nor does it appear that there was any contract, written or oral, between Waring and Johnson and wife and the appellant for tbe sale of their interests in the land; and no sufficient reason is perceived for forcing on the appellant the alternative of either accepting the deed as tendered, including those interests, and paying for them at the contract price of the other shares, or submitting to a rescission of the contract as to the shares which he did not purchase; and the judgment is in that respect erroneous. It is also erroneous in allowing interest on the debts of Mrs. Thompson’s representatives for a longer time than their contract authorized.

Andrews, Thomas, for appellant. Halbert, for appellee.

We are of opinion the court properly held the appellant bound by the statements of his answer showing there were 95 acres and 20 rods of the land, and as neither the appellant nor Mrs. Thompson’s children sought to avoid their sale, it would have been proper to adjudge a specific execution of the contracts, as embracing all the land except the interests of Waring and Johnson and wife, and to have enforced the vendor’s lien; provided the married women insisted in proper deeds to divest themselves of'title; but for the reasons we have sufficiently indicated, the appellant was not bound to accept the deed tendered, which expresses a different contract from that which he made.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.