Bunn v. Prather

Walker, J. It is insisted by the plaintiffs that by the death of Charles H. Sheppard, they were excused from waiting for their money until the land should be sold and the purchase money should become due, as they had stipulated by their agreement. Or, if they were not excused from waiting until that time by his death, that the dismissal of the proceeding for partition by the guardian of his daughter, after his death, had ■ that effect. It is a familiar principle of law, “ That when the law casts a duty on a party, the performance shall be excused by act of God; but when a party, by his oton contract, engages to do an act, it is deemed his own fault and folly that he did not thereby expressly provide against contingencies, and exempt himself from responsibility in certain events; and in such case, therefore, that is, in the instance of an absolute and general contract, the performance is not excused by an inevitable accident, or other contingency, although not foreseen, by or within the control of the party.” Ohitty on Contracts, 568. In this case the agreement to wait for the payment of the larger sum named in the contract, was absolute and unconditional. The plaintiffs were attorneys, and must have known, that in the event of the death of either the father or the daughter, that the tenancy in common existing between them in this land, would by that event terminate, and the survivor become sole seized of the land. And upon the happening of that event, they also must have known that there would not be such an estate in the survivor as the court could partition ; and knowing these facts, if they had desired to have avoided the contingency, they should have provided against it in their agreement. The duty, to wait until a sale of the land was procured under a decree of the court, was not imposed by the law, but was created by the agreement of the parties, and the death of Sheppard, although an inevitable accident or contingency, over which the plaintiffs had no control, did not excuse them from a compliance with their agreement. Nor did the dismissal of the proceeding instituted for partition by the guardian after the death of Sheppard, in any manner change the rights of the parties. By the death of Charles H. Sheppard his undivided half of these premises vested by descent in his daughter, the other tenant in common, and she thereby became sole seized of the entire property. And when that event occurred, the court lost all jurisdiction of the subject matter, and could not make partition of the land, or its proceeds upon a sale. There was, then, but a sole interest in the land, and the fact that there had been a previous order of the court for the sale of this property unexecuted, did not affect the title, so as to prevent the father’s interest from descending to the daughter. By the descent of the father’s interest in the land to the daughter, and she becoming the sole owner, the proceeding for partition abated, and the formal dismissal of the proceeding by the guardian, was no more than striking it from the docket, which the court should have done on becoming satisfied of the death of the father. Nor was it in the power of the guardian to confer upon the court authority to proceed with the sale, in that proceeding. The law has vested him with no such authority, and his consent to a sale would not have availed anything. By the express terms of the agreement of the parties in this case, the five hundred dollars did not become due and payable until the land should be sold under the proceeding then to be instituted for a partition, and the purchase money become due under such sale ; and as that event has never occurred, the plaintiffs have no right to recover that sum. Judgment affirmed,.