M'Connell's Heirs v. Dunlap's Devisees

The Opinion of the Court. — From the proofs in the cause, it sufficiently appears, that a written contract was entered into on the first day of January 1781, between Francis M’Connell and Alexander Dunlap for and in behalf of Robert Dunlap, for 500 acres of first rate land, lying in the forks of Elkhorn ; and that M’Connell had designated the particular tract. The inferior court therefore properly sustained the claim of the complainant for 500 acres ; but it is conceived it erred in decreeing 250 acres of the tract lying, in the forks of Elk-horn, and 250 acres out of the tract adjoining Lexington, as from the proofs it appears that M’Connell in conversation only, observed that Dunlap might have the 500 acres out of either tract; but it does not appear that this was inserted in the written contract; and if it had been, yet it was improper to decree 250 acres out of each ; Which does not appear to have been the intention of either party, as expressed in the written contract Or subsequent conversation.

This is therefore a modification of, or an addition to the contract, which a court has no power to make, unless by consent of the parties. Nor does it appear just to compel the complainants to take the 250 acres in the forks of Elkhorn, without their consent, as it is only a *43part, and not a full quantity to which they are entitled. And as it appears that the defendants in the court below, have not a title to the 500 acres of land contracted for and designated as aforesaid, the inferior cpurtshould have directed a jury to have been empannelledrto ascertain the value of the said 500 acres, and decreed the amount found to the complainants as damages. That the value of the said 500 acres should be fixed at what it is worth at the time of empannelling the jury ; because it appears from the defendant’s answers that M’Connell, at the time of thesale, had,by his prior contract with John Patrick, divested himself of one half of the said land. It was therefore fraudulent in him to sell land to which he knew he had not a good title or claim. But if the complainants shall consent to take the said 250 acres of land in the forks of Elkhorn, it should be so decreed ; and then a jury should be empannelled to ascertain in the manner aforesaid the value of the 250 acres of land conveyed to Patrick ; and its amount should also be decreed.. ⅞0. be paid to the complainants.