Richardson v. Keerly

By the Court. Benning, J. delivering the opinion. This case was once before in this Court, and it presents the same questions now, which it presented then. And the answer that we then gave to those questions, we now again give, and with increased confidence. 17 Geo. Rep. 602. The argument for the plaintiff, the vendee, may be thus briefly stated: 1st. The vendee (the plaintiff,) is entitled to compensation from the vendor, (the defendant,) for his loss occasioned by the vendor’s breach of his bond, whatever that loss may be. 2d. If the vendor had not broken his bond, the vendee would have acquired the whole interest in the land. 3d. The vendor broke his bond, and by reason of his doing so, the vendee was evicted in law, from the land. 4th. The vendee, by being thus evicted from the land, was [65] prevented from acquiring any interest under the bond, in the land. 5th. His loss therefore, occasioned by the breach of the bond, is a loss of the whole interest in the land. 6th. Nothing short of the value of the land, can be the measure of compensation for such a loss. The first of these propositions is, no doubt true. The same may be said of the second. The conclusion from the third is not, in my opinion, true. The Act of 1843 (the forfeiting-draw act) does not, per se, in my opinion, work the eviction of any tenant “in possession.” See section 4 of the Act, Cobb’s Dig. 707. But yet, this conclusion may be admitted to be true, for the sake of the argument. The fourth, is by no means true. The vendor, acquired by virtue of the bond, valuable interest in the land, even if it be admitted, that he was, by the operation of the Act aforesaid, evicted from the land. 1st. He acquired, by virtue of the bond, the preemption right to the land, to be exercised on the terms prescribed by the act aforesaid. By virtue of the bond he became the “tenant in possession” of the land, nay the tenant in possession under the drawer, for his vendor, (the obligor,) held under the drawer. The terms of sale prescribed by the Act, were, that any of the lots contemplated by the Act, might be had for $2000, after the first of October 1844; for $1500 after the first of November thereafter; for $1000 after the first of December thereafter; for $500 after the first of January 1845; for $250 after the first day of May thereafter; for $100 after the first day of July thereafter; for $25 after the first day of September thereafter; and for $5 after the first day of January thereafter. By virtue of the bond, the vendee (the plaintiff,) acquired the prior right to purchase the land on these terms. Of what value to him was this right of priority ? It is impossible to tell, but it must have been of much value, if dis [66] creetly used. A discreet use of it, would, it is probable, have kept off all competitors, and it is likely that he did use it discreetly, for he bought in the land under the Act at $25. One of two things must be true, either $25 was the full value of the land, or although $25 was less than its full value, he was enabled, by virtue of the advantage which his right of preemption gave him, to purchase it at $25, for the land was exposed to a sort of sale, at which all citizens might become purchasers, for nearly a year before he purchase d it, and yet no higher offer was made for it than twenty-five dollars. 2d. By virtue of the bond, he acquired the enjoyment of the land, and the right to that enjoyment, from the date of the bond until the first of October 1844, (or rather as I say, until he bought the land from the State at $25, which was on or after the first of September 1845) a period of six years (or seven.) What was a term of six or seven years in the land worth ? It was certainly worth something, it might have been worth a good deal. The worth, whatever it was, was due to the bond — was derived from the defendant The proposition is not true then, that the plaintiff, by being evicted from the land, was prevented from acquiring any interest under the bond, in the land. A proposition far nearer the truth, no doubt, would be, that he acquired, under the bond, such an interest in the land, as enabled him to buy it for $25. The argument for the plaintiff, then, is not satisfactory. There is another fact in this case, which tells, in some degree, against the plaintiff’s right to recover more than his actual damage. ' The defendant, after selling him the land, moved into Alabama, and it was not until the 13th of August 1845, that the plaintiff wrote to him, that the lot was an ungranted one; three weeks after the date of the letter, the plaintiff had obtained a grant for the lot to himself. Why this tardiness before the date of the letter, and this haste after the date of it ? Especially, may these questions be asked [67] in view of the fact, that the purchase money for the lot, though long due, was lying over. If an offer to pay this, had been made when it fell due, the defendant’s attention^ would have been called to the ungranted state of the lot, and; he could have taken out the grant under the old law, for the mere price of a grant. We affirm the judgment of the Court below. See Bush vs. Marshall, 6 How. 284. Judgment affirmed.