Henderson v. Perkins

JUDGE HAZELRIGG delivered the opinion op the court. The appellant L. D. Henderson was the owner of a farm of one hundred and ten acres, situated-in Barren county, Kentucky, and the appellee owned a store-house and lot' at Rocky Hill Station, and lands adjoining to the extent -of some fifty • acres, situated in Edmonson county. By written contract of December 13, 1889, Perkins sold his property to Henderson in consideration of the sum of' four thousand ‘dollars and the latter’s farm of one hundred and- ten acres. One thousand dollars was tó be paid down, and balance on February- 25, 1890,' when possession was mutually to be given, Perkins covenanting to make deed of general warranty when the purchase money was fully paid. Henderson paid the - one thousand dollars down, and also an additional one thousand in a few weeks after the trade. On Jan [210] uary 31, 1889, the store-house burned, and the appellee, after unavailing effort to carry out the contract, brought this action ^against Henderson and his wife in the Edmonson Circuit Court to enforce the contract, and to that end asked that his lien for the remaining unpaid purchase money be enforced by a sale of the Edmonson county lands. He tendered a deed for the lands he had contracted to convey. The defendants, having been summoned only in Barren county, pleaded to the jurisdiction, controverted the statements of the writing, set up that Perkins had no title in fee or otherwise to the land, and further, that the contract should not be enforced because Perkins had burned his store-house to get the insurance on his goods therein, or else it was burned by his negligence. The lower court sustained a demurrer to the plea of want of jurisdiction, and on hearing gave judgment for the enforcement of the contract, adjudged a sale of the' Edmonson county lands for' the unpaid - purchase price, and" adjudged that Henderson and wife should convey the Barren county lands to Perkins. The grounds relied on by Henderson to reverse this judgment, are: 1. The Edmonson court had no jurisdiction. 2. The contract is within the statute of frauds. 3. Perkins had no title to the property. 4. He burned his store-house to get the insurance on the goods. 5. The judgment erroneously directs Henderson and his wife to convey the Barren county lands to Perkins. On the subject of jurisdiction, it may be said that [211] the general rule is, undoubtedly, that actions to enforce contracts or to rescind them are transitory and not local, yet, when the enforcement involves a sale of the land to satisfy a lien thereon, it has been the rule to regard section 62 of the Civil Code as localizing the action. That section provides that actions must be brought in the county in which the subject of the action, or some part thereof, is situated, * * for the sale of real property under a mortgage lien or other encumbrance or charge, except for debts of a decedent; and such was the precise question decided in Collins v. Park, 93 Ky., 6; Uucker & Jones v. Gray, 3 J. J. Mar., 163. 2. The writing evidencing the contract, and which was signed by the parties, is as follows: “Know all men by these presents, that I, W. C. Perkins, of Rocky Hill Station, Ky., have this day sold, and by these presents do sell my home place and store-house to L. D. Henderson, of Rocky Hill, Barren county, Ky., for and in consideration of four thousand dollars,” &o., followed by a specific statement of the terms of the trade. We think this a sufficient memorandum of the contract to take it out the statute. There was a partial execution of it, and the description of the land, although defective, was sufficiently full for easy identification. (Ellis v. Deadman, 4 Bibb; 467; Hanly v. Blackford, 1 Dana, 1.) 3. The answer alleges that on the 25th of February, when the deed was tendered him, the appellee did not have any title in fee or otherwise to any of the lands described; that the store-house had then been [212] burned, and it was impossible to deliver said premises to Mm in accordance with the contract. It will be observed that wMle possession was to be given on the 25th of February, the deed was not to be made 'until the payment of the balance of the purchase money. We may suppose these acts were to be cotemporaneous, and there was no tender of the money. The appellee, however, did have title, though it was defective, and as the defects have been cured, we do not perceive that the appellee has any ground of complaint on this behalf. It is quite evident that the cause of the appellant’s hesitancy to comply with the contract was the fact that the storehouse had been burned, and from this loss we can not relieve him. There is no grant shown from the State, but the chain of title begins in 1835, and the appellee and those under whom he claims have had continuous adverse possession for at least forty years, and a grant from the Commonwealth will be presumed. 4. There is no evidence whatever tending to show that the appellee burned the house, or had any motive to do so, or that it was occasioned by his negligence. But the wife was no party to the contract, and had she been, we do not see upon what principle the court could have adjudged a conveyance of her dower in the Barren county lands, and, as this was error, the judgment must be reversed, -with directions to have it otherwise enforced.