Frechtling v. Jacobs

Decided February 2, 1907

Butler Circuit Court · decided 1907-02-02

LIMITATION OF ACTIONS — SPECIFIC PERFORMANCE. Jelke, Swing and Giften, JJ. LIMITATION OF RIGHT TO SPECIFIC PERFORMANCE OF CONTRACT. Under the rule that specific performance cannot be granted unless the right thereto rests on clear and certain proof, the privilege of purchase forming the basis of the action in the present case, cannot be enforced after the expiration of the fifteen year period. [For other cases in point, see 7 Cyc. Dig., “Specific Performance,” §§ 174-182. — Ed.]

Decided 1907-02-02

GIFFEN, J.,

¶1dissenting.

¶2The lease was for a term of fifteen years but the option of purchase survived until the death of Elizabeth C. Jacobs, when her heirs and legal representatives were, by the terms of the agreement, bound to execute and deliver to the second party a good and sufficient deed upon payment of the purchase money.

¶3The appraisement provided for, in the event Elizabeth C. Jacobs shall not sell and convey during her life, is of the same premises as the appraisement which is provided for in the event she does sell and convey during her life, to wit: the ground not including the improvements the second party may have made thereon.

¶4Demurrer to petition overruled, and decree for specific performance.