Price v. Rector

Decided April 15, 1821

Supreme Court of Missouri · decided 1821-04-15

1. In an action on a bond, with a defeasance that the obligor should, before a give® period, make or cause to be made to the obligee, a good and sufficient warranty deed, vesting in the obligee and his heirs, the fee simple estate in certain real , estate, free and clear ot all incumbrances; and reciting- also, that proper deeds could not be made until patents were obtained from U. S. — held, that upon performance being- pleaded, issue joined and found against defendant and judgment thereon, it is no error that the Court below refused to arrest the judgment. 2. In the same case,'when defendant pleaded- a tender and refusal of such a deed as is mentioned in the defeasance — plaintiff replies, and admits the tender and refusal, but avers that at the time of tendering- the deed, and e ver since, the defendant was not seized of an estate in fee simple, clear of all incumbrances— defendant rejoins that he- was so seized; upon issue joined and found for the plaintiff, and judgment thereon, held, that the issue was material, ami that such deed would not be good within the meaning of the condition, unless defendant had such an estate as the one described at the time of making-and tendering the same — held, also, that a judgment for the full amount of the bond, with damages, was well rendered, Jones, J., dissenting,

Decided 1821-04-15

Jones, J.,

¶1dissenting.

¶2The argument of this cause not having been gone through until late on Tuesday evening, and the Court being about to adjoüín.smc die this day, has put it out of my power to give an opinion at large on the case, I will barely observe, that the judg» *78ment of the Court helow, as to the construction of the condition of the bond, was, in my opinion, correct, and ought, so far, to be affirmed; but I cannot concur with' many of the arguments and conclusions of the majority of the Court, as expressed in their opinion just delivered, nor do I concur in their opinion in confirming that part of the judgment below, which gives interest by way of damages on the penalty of the bond; for which reason, so much of that judgment ought, in my opinion, to be reversed with costs.