Hempfield Railroad v. Thornburg

Brown, J. This is a suit, by the vendor against the ven-dee, to enforce the specific execution of a contract, in writing, for the sale of real estate, and to subject the property in the possession of the vendee (but not conveyed,) to a sale for the payment of the purchase money. The record discloses, that on the 8th of March, 1854, the Hempfield Railroad Company, the appellant, being desirous to construct its road through the lands of Thomas Thorn-burg, the appellee, entered into a contract in writing with said Thornburg, whereby it agreed to purchase from the latter a certain lot of ground, (which was ascertained by survey subsequently made to contain one rood and thirty-three perches,) for the price of 300 dollars; also the right of way through the lands of said Thornburg, at the rate of 250 dollars per acre, (ascertained by survey subsequently made to contain four acres, three roods and twenty-four perches,) amounting in the aggregate to 1,225 dollars, and agreed to pay said Thornburg 2,275 dollars, as compensation for the removal of his buildings, to-wit: his dwelling house and barn, ofF of Said right of way. That by the terms of said agreement, the said company obligated itself to pay in cash the whole of said money, to-wit: said 300 dollars for the lot, said 1,225 dollars for the right of way, and said 2,275 dollars for the removal of said buildings, amounting in all to 3,800 dollars; and the said Thornburg obligated himself, as soon as said money was all paid, to make to said company a good and sufficient deed therefor. That immediately upon the execution of said agreement, said Thornburg delivered the possession of said lot and said four acres, three roods and twenty-four perches to said company, and removed said buildings off of said right of way. That said company, instead of complying with its said obligation, had at the [267] time of the institution of this suit in April, 1858, only paid thereof 2,012 dollars and 50 cents, leaving a balance of 1,787 dollars and 50 cents, with interest from said 8th of March, 1854, still in arrear and unpaid. The decree applies said payment of 2,012 dollars and 50 cents to said 2,275 dollars agreed to be paid for the removal of said dwelling house and barn, adjudges said appellee to have a lien on said lot for the payment of said 300 dollars, and also, a lien on said right of way for the payment of said 1,225 dollars, and provides for the sale of said lot and said right of way, unless said 300 dollars, and said 1,225 dollars, with their interest, are paid within twelve months from the date of said decree. It is objected by the appellant, that the court erred in the application of the payments. The rule on this subject is well stated by chief justice Marshall in the case of Field vs. Holland, 6 Cranch, 27; and is sustained by the cases of Wilson et al. vs. Bunk et al., 7 Allen, 270, and 11 Ohio State Rep., 510; according to which the court below rightly applied the payments in this case. I further think, that the court was bound either to execute the contract of sale, or rescind it altogether, and restore the parties in statu quo, by discharging the purchaser from the payment of the purchase money, and restoring the possession of the land and easement to the vendor. And since no ground for rescisión is' alleged, shown or claimed, there was no alternative left but to execute the contract, by decreeing the purchaser to pay the purchase money; the property should have been sold for that purpose, or so much thereof as might be requisite. Lewis et al., vs. Caperton’s ex’or et al., 8 Grattan, 163; Young vs. Mauck, 15 Grattan, 300; Adams vs. Stillwell, 14 Ohio, 20. But, before a sale should take place, the vendor should have been required to file a proper deed for the land in pursuance of the contract of sale, properly executed and acknowledged for record, with the relinquishment of his wife’s dower right therein. And since no such deed was filed or required, the decree should be reversed for that [268] cause, and tbe cause sent back to the circuit court, to be there proceeded in according to equity and the principles above indicated. Harrison, J., concurred with Brown, J. Berkshire, President, dissentiente. Decree reversed, and cause sent back for further proceedings.