Kerney v. Gardner

Walker, J. The first question which we propose to consider, is, whether the demurrer was properly sustained, to defendant’s fourth plea. It averred, that the note sued upon, was given for the purchase money, on the sale of S. W. 34, T. 3 N., R. 3 E. of the fourth principal meridian, which was sold by appellee to appellant. That at the time the note was executed, appellee gave to appellant an agreement of that date,, by which he obligated himself to convey all of his right and title in the land, to appellant, provided he should pay to him the sum of three hundred and nine dollars, which sum was inserted in the agreement instead of the amount specified in the note, within one year from that date. The plea further avers, that there was no other consideration for the execution of the note, and that when the note and agreement were executed, the land was vacant and unoccupied, and appellee did not have possession, or improvements thereon, nor has he ever had possession before or since inaMng the agreement and note. And that appellee at the time had no right or title to the land, nor has he had since executing the agreement and note. There is no covenant for title contained in the agreement described in the plea. Nor does it show any agreement to convey the land, but simply to convey all the right and title which he then had. If he had no title, there could be no failure of the consideration, as appellant by the agreement, assumed the risk of the want of title, in appellee. If he had been unwilling to risk such a title as appellee had, he should have refused to purchase, or he should have contracted for covenants of titlfe, in the conveyance he was to receive. But having, contracted for such title only as appellee had, he has no right to insist upon anything more. That title, such as it was, constituted a sufficient consideration to support the note. A release or quit claim deed is all that is required by the contract. Such a deed fully answers its conditions. It is again insisted, that as the note was rejected as evidence under the special count, because of variance, that it was improperly admitted under the common counts, its execution not having been sufficiently proved. Jones testified that some years previous to the trial, he had commenced suit on the note, and during its pendency, he spoke to appellant in reference to it, and that he admitted that he had given the note to appellee in a land trade, but stated that it was without consideration. That he, witness, had not shown the note to appellant. Does this evidence identify the note, and prove its execution? We think it does. The suit was pending, and a copy of the note was no doubt on file, or it was' at least described in the declaration. It seems to be agreed by all parties, that this note was given for the purchase of this land, and no other appears to have been given to appellee. Appellant must have known that this was the note sued upon, as lie said it was given in a land trade. It is also urged, that the same evidence which proves the execution of the note, also proves that it was given without consideration. This evidence was heard on a preliminary question, and not upon the main issue in the case. That portion of the admission which related to the want of consideration, was not pertinent to the issue then being tried, and it was not introduced on the trial. The next question is, whether the tender of the deed by Ray, was sufficient to authorize the maintenance of the suit. He testified that he received the deed from appellee’s brother, and tendered it to appellant, who refused to receive it. He also says, that after tendering the deed, he returned it to James Gardner, of whom he had received it, but never had any conversation with appellee, in reference to the deed, nor did he receive authority from him to make the tender. The fact that the deed is found in the hands of appellee, after being in the hands of the others, and that they had previously had it, all strongly tends to prove that appellee’s brother had received the deed to be tendered to appellant. It can hardly be supposed that James Gardner would be in possession of this deed executed hy his brother, and making a tender through Ray without authority. Appellant had the opportunity of receiving the deed, but rejected it, and although the evidence is not of that clear and satisfactory character which convinces the mind beyond doubt, yet we think it was sufficient, from which a tender might be inferred. It is likewise objected, that the deed does not purport to convey the land to appellant. After having carefully inspected the deed itself, we find that the name “ Kerney ” is not very legibly written, but seemsrto have been spelled with an “ a,” which is blotted. It however cannot well be made to spell any other than appellant’s name. We are of the opinion that this objection is not well taken. It is in the last place urged, that the deed should have contained covenants against the acts of appellee, after entering into the contract, and before the conveyance was .made. The contract calls for no such covenant, and the court has no power to make agreements for the parties. If such acts had been done by appellee, as divested or incumbered his title, appellant should have shown it. The law will not presume that he has violated his agreement, but if he has, the other party must establish the fact. There was no proof that any change had occurred in the title after the sale was made, and when the complainant tendered the deed he fully complied with his agreement. Upon this entire record, we perceive no error requiring the reversal of the judgment of the court below, and the same is affirmed. Judgment affirmed.