Wilbourn v. Bishop

Campbell, C. J., delivered the opinion of the court. The paper of the 7th of March, 1878, executed by John Bishop, evidences a contract of sale capable of enforcement. It is sufficiently certain in its terms, and is supported by a sufficient consideration, and its specific performance will not be inequitable, but highly equitable, and will be the accomplishment of what John Bishop manifestly contemplated and stipulated for. The instrument furnishes the basis for computation of the amount Bishop was to receive for the purchase-money’ and fixes the contingency on which the sale was to be finally consummated. It was, therefore, definite and certain enough. Although the paper contains no provisions except in favor of Bishop, who executed it, the circumstances connected with the transaction are enough to raise an implication of corresponding and correlative obligation on the part of the Wilbourns. The paper executed by Bishop on the 26 th of May, 1875; the fact that on the day on which the instrument of 7th of March, 1878, was made the Wilbourns became the tenants of Bishop, obligating themselves to pay him rent for the land, thereby acknowledging his title and relinquishing their rights as heirs of Chloe M. Wilbourn by virtue of the paper of 26th of May, 1875, or otherwise; the great excess of the value of the land beyond the charge on it in favor of Bishop; the relationship between the parties, and the attitude of Bishop toward the land [349] from his first connection with it to his death, as ascertained from the several papers relating to it, give abundant evidence of a sufficient consideration to uphold an agreement by Bishop to sell the land on the terms named in the contract of 7th of March, 1878. The circumstances fairly raise an implication of reciprocity of obligation between the parties. If it appeared that the paper of 7th of March, 1878, was purely voluntary or a mere proposal it should not be enforced, but the contrary is plainly to be inferred. The instrument itself, its delivery for safe-keeping, its reasonableness, its harmony with the attitude ever maintained by Bishop toward the land and its owners, satisfy us that the paper'of March 7, 1878, was intended to furnish the measure of the rights of Bishop and the Wilbourns, and was so understood by all concerned. • During Bishop’s life matters remained as fixed by the contract of 7th of March, 1878, by which Bishop was to be paid rent, and at the time prescribed by his agreement was to sell the land for the stipulated price. A sufficient explanation of this continuance is found in the fact that another suit seeking to fix a charge on the land was brought against Bishop after the 7th of March, 1878, and it was pending at his death. This also furnishes a sufficient explanation of the absence of any effort by the Wilbourns to effect a consummation of the sale stipulated for. After the death of Bishop his heirs dispossessed the Wilbourns of the land by unlawful detainer, denied their claim as purchasers, and repudiated all obligation on the part of Bishop or his heirs to convey the land. Under these circumstances it was sufficient for the complainants to make an offer in their bill to pay what is due the heirs of Bishop when ascertained, without having made a precedent tender, which would have been refused. Besides this, it was not known how much to_ tender. The amount beyond seven hundred dollars consisted of expenditures by Bishop, information of which should come from the defendants, who are his heirs. The parties to whom the heirs of Bishop sold the land are not shown by the answer to occupy the attitude of bond fide purchasers [350] entitled to protection. They do not claim to have paid the purchase-money and received conveyance of the legal title. Decree reversed and, cause remanded for further proceedings in accordance with this opinion.