Hurst v. Hensley

Dewey, J. — On the 16th day of April, 1838, Fischli entered into a written contract with Hensley, by which the former agreed to sell to the latter a certain lot of land in Jeffersonville for 1,200 dollars payable in two years. Fischli was to make a deed in fee-simple, with general warranty, to Hensley, upon the payment of the purchase-money. Hensley executed his note for the money, and took possession of the lot. Before the expiration of the two years Fischli died, without having made a deed, the purchase-money remaining unpaid. Fischli left a will, by which he devised all his real estate to his nephews and nieces, and their representatives, who were his heirs at law. These devisees and heirs refused to make a deed to Hensley, and the latter refused to pay the purchase-money to Fischli’s executor. Whereupon the executor, after the money became due, filed this bill in equity against Hensley and the devisees and heirs at law of Fischli, setting forth the above facts. The prayer of the bill is, that the Court will order and decree the devisees and heirs to execute a deed to Hensley according to the contract; that Hensley pay the complainant the purchase-money; and that, in default of the making of the deed and the payment of the money, the premises be sold for the satisfaction of the debt ; general relief is also prayed. Hensley demurred to the bill for want of equity. The demurrer was allowed, and the bill dismissed. We think this decision is erroneous. The executor of Fischli cannot sustain a suit at law on the note for the purchase-money, because no deed has been made, or offered to be made, to Hensley for the lot which Fischli contracted to convey to him. The payment of the purchase-money and the making of the deed being by the contract concuri’ent acts, no suit at law will lie for the money unless the deed has been made or offered to be made. Warner v. Hatfield, 4 Blackf. 392. The complaixiant is incompetent to make a deed himself, nor can he, without the aid of a Court, compel the devisees and heirs of Fischli (in whom is the legal title of the lot contracted to be sold to Hensley) to execute a conveyance. [375] The executor is, therefore, without remedy, unless he can resort to equity to enforce the contract. We think this resort is open to him. The personal representative of a vendor who has deceased without having conveyed, and before he was bound to convey, has the right in a Court of equity to require of the heirs or devisees of the vendor, to make a deed according to the contract of sale, and to demand of the vendee the payment of the purchase-money; and he is also entitled to enforce the vendor’s lien for the price of the land. Lacon v. Mertins, 3 Atk. 1. Such are the objects of the bill in this cause. The demurrer should have been overruled. R. Crawford, for the plaintiff. A. Lovering and H. P. Thornton, for the defendants. Per Curiam. — The decree is reversed with costs. Cause remanded, &c. •