Kelsey v. Crowther

Lewis P. Kelsey and James K. Gillespie filed their second amended complaint in this case in the district court of the Third district of the territory of Utah, December 13, 1888, against William J. Crowther, John T. Lynch, and William Glasmann, alleging that on or about September 12, 1887, the defendant Crowther was seised in fee simple of a certain tract of land, containing 40 acres, situate in the county of Salt Lake, territory of Utah; that on that date the plaintiffs and Crowther entered into an unwritten agreement, whereby the plaintiffs agreed to buy, and Crowther agreed to sell to them, the said tract, for the sum of $3,250, it being agreed, as alleged, that a portion of the tract, containing 10 acres, was to be conveyed at once, and $500 of the said sum to be paid upon the conveying thereof, and that the remaining portion, containing 30 acres, was to be conveyed at the time, in the manner, and for the amount set out in a certain written contract, which, as alleged, was prepared solely in pursuance of the said unwritten agreement. It was alleged that the 10-acre portion of the tract was not worth $500, and that such sum was agreed by them and Crowther to be received by him, not only in payment for the 10 acres, but also as part consideration for the remaining 30 acres. The said written agreement was as follows:

'Salt Lake City, Utah, September 13, 1887.

'Received of Lewis P. Kelsey and J. K Gillespie the sum of fifty dollars, being part consideration of the purchase price, to wit, $2,750, at which the undersigned agrees and contracts to sell, and by good and sufficient warranty deed convey, free of all liens, to said Kelsey and Gillespie the following described lot of ground, to wit: The east thirty (30) acres of the south half of the southwest quarter of section three (3), township one (1) south, of range one (1) west, Salt Lake meridian.

'Said purchasers to have, after this date, thirty (30) days for the examination of the title of said premises, and in case said title is adversely reported on by the attorneys of said purchasers, then said part consideration hereby receipted shall be at once returned to said purchasers; but if said title is approved, I hereby contract and agree to and with said Kelsey and Gillespie that I will at once, on payment of said balance of the agreed purchase money, to wit, $2,700, duly execute, sign, and acknowledge, and deliver a full and perfect warranty deed, conveying to said purchasers the entire title to said premises, and I agree to at once furnish an abstract of title to said premises and other needful papers.

Wm. J. Crowther. [Seal.]'

The plaintiffs alleged that Crowther failed to furnish them an abstract of title to the land, and that by reason of such failure they were unable to examine the title within 30 days; that, notwithstanding the fact that the abstract was not furnished as agreed, they tendered to Crowther on October 14, 1887 (being the next day after the said period of 30 days had expired), the sum of $2,700, and demanded a conveyance of the property, which Crowther refused to execute to them. They further stated that, as they were informed and believed, the defendants Lynch and Glasmann claimed to have obtained from Crowther some interest in the said 30 acres, but that such pretended interest was acquired by the said defendants subsequently to the making of the said contract, and with full knowledge of the existence thereof, and was therefore subject and subordinate to the rights of the plaintiffs.

The plaintiffs stated that they were ready and willing to day the said sum of $2,700 to Crowther, and asked the court to decree that Crowther execute to them a warranty deed, conveying to them the said 30 acres of land, free of all liens; that Lynch and Glasmann be required to set forth the nature of their respective claims to the land; that such claims were subject and subordinate to the plaintiffs' rights therein, and wholly invalid, and that Lynch and Glasmann be perpetually enjoined from asserting any claims whatever to the property adverse to the rights of the plaintiffs.

The defendants demurred to the said complaint, and, their demurrer having been over-ruled, they filed their answer on December 13, 1883, wherein they denied that the written contract was executed in pursuance of the alleged unwritten agreement, or that such unwritten agreement was ever made; denied that the 10-acre portion of the tract was not worth $500, or that that amount was any part of the alleged agreed consideration for the 30 acres; and denied that the plaintiffs tendered to Crowther, on October 14th, or at any other time, the sum of $2,700, or any sum. It was stated, in the answer, that the defendants Lynch and Glasmann had purchased the said 30 acres from Crowther subsequent to November 4, 1887, and that such purchase was made, and the entire consideration therefor paid by them, without any knowledge or notice on their part of any contract in favor of the plaintiffs, or of any of their alleged rights in the property.

On January 30, 1889, the court, having theretofore heard the testimony and argument, found the facts to be as follows:

'First. That the written contract set forth in the complaint was executed by the defendant W. J. Crowther, and delivered to the defendants [meaning, doubtless, to the plaintiffs].

'Second. That at no time during the thirty days therein specified did the said plaintiffs tender or offer to pay the said defendants the $2,700, purchase price of the said land; that at no time during the said period did the said plaintiffs signify their intention to accept the terms of said contract, and to purchase the said land.

'Third. That on the 14th day of October 1887, plaintiffs and defendant Crowther had further conversation on the subject of this purchase, but that on that day the plaintiffs, or either of them, did not tender $2,700, or any part thereof, or any other sum, as per said agreement, for the said ground, to defendant Crowther, and the said plaintiffs were not ready or willing to pay the balance of the purchase money for the said property to the defendants.'

Upon these facts the court found, as its conclusion of law, that the defendants were entitled to judgment, and on January 30, 1888, judgment for the defendants was duly entered. An appeal was taken by the plaintiffs to the supreme court of the territory of Utah, and there, on September 12, 1891, the judgment was affirmed (7 Utah, 519, 27 Pac. 695); whereupon the plaintiffs appealed to this court.

P. L. Williams and O. W. Powers, for appellants.

Arthur Brown, for appellees.

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