
    M’CONNELL’S heirs vs. DUNLAP’S devisees.
    
      November 13th.
    A parol decIa_ ration of one Part^ wlU. not
    Ifamancon-tra<a t0 convey ¡¿°¿ 0“r”f 0°¿ of two traits, it is erroneous w veyance 0/250 out of eacl1 trait-
    ^raft^oi land, ifthe ven-ior be ab,e to the'uaa'only! the vendee may at hls eleñlon veytmce of ⅛"' part, and recover damages for ^he^mayTel fufe to take inch part, and jj'j0Vf¿r dta¿¿a" whole,
    The vendor a fpecified trait of land, in as much as he knew he could not make a title for it: the time when the contract was to have been performed did not appear ; under thefe circumfiances the court dire&ed the value of the hnid at the time of ¿wearing the jury to be the meafure of damages.
    DUNLAP’S devisees filed their bill in the Lexington district court against the heirs of M’Connell; alleging that on the first day of January 1780, their testator purchased of the ancestor of the defendants a particular tract of 500 acres of land in the forks of Elkhorn, and paid the principal part of the consideration, and secured the residue to be paid : that M’Connell agreed that if any of the Elkhorn land should be lost, he would give as much as was lost out of his land near Lexington : and that a conveyance was to be made as soon as patents could be obtained. For the doing Of all which, they leged that M’Connell executed his bond to Dunlap.
    Shortly after this Dunlap died, having devised the land to the complainants, two of his infant children ; and on the 24th day of August 1782, M’Connell, by contract with Dunlap’s executor, took in the said bond for 500 acres of land, and gave one conditioned for the conveyance to the complainants of 400 acres of good land in Kentucky, at some convenient time. This they charged was fraudulently done between M’Connell and the executor; at least that it was on the part of the executor entirely without authority. The bill prayed to set aside the latter bond, and to have the benefit of the first contract.
    The answers of the defendants, some of whom were infants, declared their ignorante of the whole transaction ; denied fraud, and put the complainants upon the proof of their case. They also alleged that their aneestor, although he held the title of said 500 acres of land, a certain John Patrick was equitably entitled to one half, he having furnished the warrant and assigned it to M’Connell, who located it on the halves ; and that a conveyance had been made to Patrick of his half; which conveyance they set forth. They also exhibited a list of lands held by them by descent¿
    The proofs in the cause established the purchase of the 500 acres of land on the 1st day of January 1781 ; and that M’Connell gave his bond to convey that tract. The payment of the consideration was also proven. There was further proof that M’Connell had repeatedly said that Dunlap might have the 500 acres of land out of his land near Lexington, as he wanted him for a neighbor. There was no evidence of the time when the land was to be conveyed ; nor did it appear when a patent ivas obtained for said land.
    The inferior court decreed a conveyance of the remaining 250 acres of the Elkhorn tract, and 250 acres out of the land near Lexington. M’Connell’s heirs appealed. The following was
   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 part, 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.  