Hennessy v. Bacon

It was adjudged below (35 Fed. Rep. 174) that the appellees, Bacon and Rogers, each owned in fee an undivided one-fourth, and the appellant, Hennessy, an undivided one-half, of certain lands in Washington county, Minn., and that partition thereof be made between them upon that basis. Of this decree the appellant complains, his contention being that he holds the legal title to an undivided half of the lands, and that the appellees should be required to surrender to him the title to the other half.

It appears that the lands originally belonged to George N. Chittenden, of Illinois, and that by written contract of date March 27, 1882, he sold them to Bacon, agreeing to convey to the latter, his heirs and assigns, 'by a good and sufficient deed of warranty, on or before the 27th day of June, 1882,' upon the punctual payment of the consideration, $4,400, at such time as Chittenden should execute a sufficient deed of general warranty. The contract provided that, if Bacon failed to pay the consideration, then the contract should be void, 'time being of the essence of this agreement.'

On the 27th of June, 1882, Bacon, his wife uniting with him, for the consideration of $500, (of which $100 was paid in cash,) assigned and transferred to Hennessy all his right, title, and interest in the agreement with Chittenden. The contract of assignment provided that Hennessy should receive a good, clear, and perfect title to the lands through a good warranty deed, with usual covenants, running from Chittenden and wife to Hennessy, or from Bacon and wife to Hennessy, if it should be thought proper to have Bacon and wife take title from Chittenden; also that Hennessy should pay to Bacon the remainder of the $500 upon receipt and only upon receipt, 'of such title through such deed to said lands, or upon the said Hennessy accepting a deed of warranty' from Chittenden or Bacon. If Hennessy did not receive such title on account of an incurable defect in the title or other cause, the deposit made by him was to be refunded.

On the day of the execution of the contract between Bacon and Hennessy, the latter made a tender of $4,400 to Chittenden's agent residing in St. Paul, in fulfillment of the contract of March 27, 1882, and demanded a conveyance in accordance with its terms. Hennessy was informed before making the tender that Chittenden had not executed the required deed, and it was made then only to preserve his rights under the contract. Shortly after the tender, Chittenden left with his agent a deed, in proper form, to be delivered upon the payment of the price of the land, and of this fact notice was promptly given to Hennessy and Bacon. Hennessy received in the mean time an abstract of the title, and, discovering therefrom that the record did not show a clear, unincumbered title in Chittenden, he sent to the latter's agent a memorandum of the defects therein appearing of record, and demanded that those defects be remedied. The agent wrote twice to Hennessy, at Dubuque, Iowa, where he resided, urging him to give attention to the matter, stating in a letter of date of November 6, 1882, that unless some understanding was soon reached he would return the deed to Chittenden, who would probably decline to carry out the sale. Under date of November 16, 1882, he again wrote to Hennessy, as follows: 'Yours of the 15th inst. received, in answer to a previous letter. You instructed me to see Mr. Horn. I immediately saw him, and satisfied him as to some of the objections, consulted him as to others, and left the papers with him. He expressed the wish to see you about the matter, in order that he might inform me directly and positively what further would be required to make the title good. I have sought in every way since you went into this transaction to obtain an interview with you, or some one authorized to act for you, in order to arrive at something definite, and have found it exceedingly difficult to do so. Although instructed to refer me to Mr. Horn, Mr. Kavanagh did not do so until I wrote you, and now that I have interviewed Mr. Horn I find it difficult to reach any result. I am not accustomed to that way of doing business, and cannot say I particularly appreciate it. I would suggest that the best and quickest way to come to some definite understanding about the matter is for you to meet Mr. Horn and myself at such early time as may be designated by you. Unless this is done by Monday next, (Nov. 20,) I shall return the deed (which I hold ready for delivery to you) to Mr. Chittenden, and it is doubtful whether he will carry out the same. Allow me to suggest it is part of your manifest duty not to interpose interminable delays to the settlement of the matter, and that if you will appoint the above meeting, or designate Mr. Horn or some other person who can act for you in your absence, this transaction can speedily be finished.'

The evidence is conflicting as to what passed between the parties after that date; but it is certain that the deed from Chittenden remained in the hands of his agent for more than three years, and that Bacon repeatedly urged Hennessy to indicate more distinctly than he had done the nature of his final objections to the title, or give up his contract of purchase. Hennessy contended, not only that Chittenden's agent well understood the defects in the title, but that they should be remedied. During all that period the land were appreciating in value, and by the fall of 1885 were worth more than $30,000. Finally, at the suggestion of Bacon, Rogers determined to buy them, the understanding being that Rogers was to make the purchase, allow Bacon, as commissions, the difference between $5,000 and the amount paid for the lands, and, when Rogers got them, he was to give Bacon an interest of one-half upon the latter's paying half the expenses necessary to clear the title. There was an apparent cloud upon the title of record. It arose out of a mortgage in which Sanborn claimed an interest. Rogers, with knowledge of the contract between Bacon and Hennessy, paid Sanborn $1,000 for that interest, and on the 4th day of November, 1885, took a general warranty deed from Chittenden, paying the latter the sum of $4,705.87. Chittenden took from Rogers a bond to indemnify him against any claim and demand made, or that might be made, by Bacon and Hennessy, or either of them, and against any loss or damage by reason of the conveyance to Rogers.

On the 16th of December, 1885, Rogers informed Hennessy, by letter, that, Bacon having forfeited his contract, he had purchased the lands from Chittenden, and put his deed on record. He sought, by letters, a meeting with Hennessy, that the matter might be settled between them. The latter for some time took no notice of these letters, but, at last, he wrote to Rogers, under date of January 21, 1886, saying that, while he was fully assured of the validity of his title to the lands, nevertheless, in the interests of peace, and for the sake of avoiding what might prove a long, vexatious, and expensive litigation, to say nothing of the bitterness of feeling usually resulting from such disputes, he was willing to meet Rogers and see if some amicable adjustment of the question between them could be reached. He said: 'I wish it, however, distinctly understood that I do not, by this concession to peace and harmony or good feeling, or anything that may result therefrom, in any way, shape, or manner, waive any right, or recognize or admit in you, or in any one else, any right, title, or interest, legal or otherwise, in or to the lands in question, or any part thereof, and that I emphatically must oppose, and in the strongest terms, forever, any such right, title, and interest in you, and any and every existing person. With that understanding, I shall endeavor to meet you for this purpose in the course of the coming week, at such time and place as we may hereafter agree upon.'

Hennessy and Rogers finally held a conference, which resulted, March 18, 1886, in a written agreement between them, which recited their respective claims to the lands, and privided: 'Now, to settle the same, the said Edward G. Rogers hereby agrees to make and execute to said David J. Hennessy a quitclaim deed of an undivided one-half of said property; and the said Hennessy agrees to execute and deliver to said Edward G. Rogers a quitclaim deed of an undivided one-half of said property; and also, in further consideration of said deed, to pay said Rogers the sum of ($2,750) two thousand seven hundred and fifty dollars. This settlement to be in full of all claims in favor of said D. J. Hennessy, and against one George V. Bacon and one George N. Chittenden, growing or arising out of any contracts in regard to the sale or purchase of said land by said Hennessy from said Bacon or said Chittenden. This agreement to be executed and carried out as soon as possible, and at least within 30 days from this date, if possible. Time is not of the essence of this agreement.'

Pursuant to this agreement, Rogers made a deed to Hennessy for an undivided half of the lands, the latter paying therefor the sum of $2,750, and Hennessy made a deed to Rogers for the other undivided one-half. Subsequently Rogers conveyed one undivided fourth interest to Bacon, and at a later date conveyed to him the remaining one-fourth of his original one-half interest, for the consideration of $10,000.

The present suit was brought by Bacon for partition between himself and Hennessy, upon the basis of the ownership by each of an undivided one-half interest. Hennessy having alleged in his answer that the settlement of March 18, 1886, was a fraud upon him, Rogers, at Bacon's request, repurchased, and took a conveyance for, the one-fourth interest he had sold to Bacon, and, with leave of the court, became a co-plaintiff in the suit with Bacon.

M. F. Morris, for appellant.

E. G. Rogers, for appellees.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.