Opinion
(January Term, 1867.)
Where the owner of a one-third interest in land conveyed that interest to the owner of the other two-thirds, and took a covenant from the bargainee that he would sell the tract to the best advantage, and pay the bargainor one-fourth of the proceeds, but would not sell unless such one-fourth would amount to $1,500, and in case no sale should be effected in six months, would reconvey to the bargainor, or pay him $1,300; and a sale was not effected till after the lapse of six months: Held, that the obligation to sell had ceased, and the bargainor could only claim a reconveyance of his former interest in the land, or $1,300, at the election of the bargainee.
BILL for relief upon a covenant, filed to Spring Term, 1861, of DAVIDSON, and at Spring Term, 1864, set for hearing upon bill, answers and exhibits, and transmitted to this court.
The covenant in question was executed by the defendant Smith to the complainant's intestate, and "guaranteed" by the intestate (166) of the other defendants, 11 August, 1853. Its terms and the object of the bill sufficiently appears from the opinion of the court.
Bragg, for the complainant.
Gorrell, for the defendant.
Mr. Hargrave was very cautious in making the contract. He conveyed to Smith his one-third of the Garner tract of land, in the confidence that Smith would make a sale of the whole tract; and by the instrument set out in the pleadings Smith was bound to pay Hargrave one-fourth of the amount for which he should sell, making no deduction for expenditures necessary to develop the capacity of the mineral value of the land. Smith was not to sell at all, unless the one-fourth would amount to, at the least, $1,500; he was in good faith to make a sale for the highest price he could get, and, "in case no sale is effected within six months, at the end of that time," Smith binds himself either to reconvey to Hargrave the one-third of the land or to pay him $1,300.
By the proper construction of this instrument the obligation to sell was, at the end of six months, "functus officio," and Hargrave was entitled either to a reconveyance of the one-third of the tract of land or to $1,300, at the election of Smith.
The bill seeks for a specific performance of this agreement to sell, and demands payment of the one-fourth of the proceeds of a sale made long after the end of the six months. The complainant has misconceived his right under the instrument of August, 1853. No sale having been made, at the end of the six months he was entitled to a reconveyance of the one-third, or to $1,300, at the election of Smith. Neither Fisher nor Smith has been called on to make this election. But it is (167) clear that the agreement to sell under the instrument, which the bill seeks to enforce, was functus officio, and the bill must be dismissed without prejudice, leaving the complainant to take such proceedings as he may be advised.
PER CURIAM. Bill dismissed.