Harris v. Calmes

JUDGE LEWIS DELIVERED THE OPINION OP THE COURT. In 1890 appellee Calmes executed to appellant Harris á deed as follows: “That the said party of the first part, in consideration of $100, in hand paid, * * * ¿Loes hereby sell and convey to the party of the second part * * * the following described property, viz., two aeres of land on the south side of Kentucky river, in, Lee county, for the purpose of erecting a residence and mill thereon, said land bounded as follows: * * * Also a free right to use. water from the spring situated near the above-described tract of land; also the free right to pipe or trough water from any part of the farm now owned by the party of the first part, but not to obstruct any passway nor exhaust said Calmes’ supply of water, with a free right of way to and from above described tract of land. To have and to hold the same, with all the appurtenances thereon, unto the second party, * * * with covenant of general warranty, for the purposes herein named. * * * The said Calmes is to have refusal if said land is sold by said Harris.” Harris did not erect a residence or mill upon the tract of two acres, nor does he now claim the right or assert an intention to ever do so. On tue contrary, he sold the land to appellant, James Durbin, at the advanced price [274] of $200, who has a residence upon it, and he there retails brandy as a distiller. Appellee, therefore, brought this action to rescind the contract, which the lower court adjudged is to be done upon terms that appellee repay the $100 and interest, be allowed as set-off rents, and also pay for valuable and lasting improvements. Whether the language used in the deed amounts to or falls short of a covenant by Harris to erect on the land a residence and mill, it is manifest such was the intention of the parties; for, independent of the positive statement of appellee and admission by appellant Harris that he intended at the time of the purchase to do so, it is plainly stated in the deed the land was sold and conveyed and title warranted for such purposes. Besides, the unusual and valuable concession of not only the free use of water from the spring, but also the right to pipe water from any part of appellee’s farm, together with the right of way in any direction to and from the two acres, show the parties had, when the deed was executed, in contemplation the erection by Harris of the residence and mill as part consideration for the sale. We, therefore, think the statement in appellee’s petition that an express covenant by Harris to erect the residence and mill was omitted by mistake is fully and satisfactorily established; and, being so, his right to have, in a court of equity, the mistake corrected and the terms of the deed, as thus amended, complied with on the part of Harris, or, in case of his.refusal, rescission of [275] the contract, is unquestionable. And as appellant Durbin does not deny he, at the time of his purchase, had notice of the consideration and condition of the sale and conveyance by Calmes to Harris, there is no intervening equity to prevent the rescission. Judgment affirmed.