Brown v. Budd
2 Ind. 442
Ind.
1851
Check Treatment
Perxcxns, J.

In March, 1847, Gilbert Budd filed his bill in chancery in the Floyd Circuit Court against John Brown and others, alleging, that on the 1st day of May, 1841, he and one James Collins, jun., purchased of one Henry Collins part of out lot, letter C, in New Albany, and agreed to pay therefor, 4,500 dollars, by paying debts to divers persons which said Henry Collins was bound to pay, to-wit, James Durnell 296 dollars and 33 cents; Frederick Hanger 126 dollars and 60 cents; Jacob Lafollett 634 dollars and 84 cents; Josiah Lamb 208 dollars and 79 cents; John Flicknor 203 dollars and 25 cents; James Hickman 119 dollars and 95 cents; Philip Cook 117 dollars and 50 cents; the Branch Bank at New Albany and the New Albany Insurance Co. 609 dollars; a judgment in favor of George B. Spurrier for 312 dollars and 12 cents; one in favor of St. Clair Young for 444 dollars and 87 cents; one in favor of James Collins, jun., for 422 dollars and 15 cents; and a debt due Gilbert Budd of 1,004 dollars and 58 cents; that they executed to said several persons, except said Collins and Budd, their joint and several promissory notes for the payment of said several sums of money, five years after the date of said notes, and thereupon received a deed for the property and entered into *443possession. They also executed the following agreement :

“ Article of agreement made and entered into this first day of May, 1841, between James Collins, jun., and Gilbert Budd, both of Floyd county,- Indiana, witnesses, that whereas the said Collins and Budd have this day purchased that part of out lot, letter C, between upper Spring and upper Elm streets, in the city of New Albany, in the county aforesaid, and bounded as follows, to-wit, [boundaries omitted,] for the sum of 4,500 dollars, on which purchase said Collins has this day paid 422 dollars and 15 cents, which sum the said Budd agrees to equalize by paying judgments against said house as they may become due and payable, adding interest on such payment when made to make it equal to the interest on the sum now paid by said Collins. It is also further agreed that after such equalization, each of them is to advance money for payment of any debt they have assumed against said property in equal portions; and in all cases where one advances more than the other, the one advancing most holds a lien on the other’s interest in said house for such advancement. It is also agreed between the parties that the rents of the tenements on said lot are to be received by II. Collins and applied to debts in bank and the insurance office until the same are paid out; and if the same are not sufficient therefor, said parties are to advance to him a sufficient sum in equal portions. It is also agreed that said Budd has a debt of 1,004 dollars and 58 cents against said house and lot, which is to remain three years without interest, at the end of which term the parties are to settle, and if one holds more of the notes given for said property than the other, the overplus is to bear interest until equalized by the other.”

The foregoing instrument was under seal.

The bill further alleges that in 1846 Hanger, Lafollett, Cook, Hickman, Flicknor, and Burnell obtained judgments on their notes against said Budd and Collins, and being about to take out executions, and said Collins being insolvent, said Budd, plaintiff, was compelled to, and did, pay *444off said judgments; and that, on the first day of January, 1846, said Budd paid to the bank and insurance office, and to St. Clair Young and George B. Spurrier, 1,130 dollars, leaving his, said Budd’s, own claim of 1,004 dollars and 58 cents still unpaid. .

The bill further alleges that on the 16th day of August, 1845, the sheriff of Floyd county, by virtue of several executions in his hands against said James Collins, jun., and others, sold the interest of said Collins in said lot to one John Brown, who had notice of the lien of said Budd, and that said Brown has subsequently conveyed to others, having like notice. The bill prays that it may be decreed, on the final hearing, “that the undivided half of said property which belonged to said James Collins, jun., on said first day of May, 1841, be sold to pay to your orator [said Budd] the said sum of two thousand dollars, and compel said occupants to deliver possession thereof to the purchaser,” &c. John Brown, who purchased the lot at sheriff’s sale, made default. Tlwmas L. Smith, another of the defendants, and the grantee of said Brown to an undivided half of his purchase, also made default. John Nicholson, a defendant, and the grantee of the remaining undivided half of said Brown’s purchase, answered. Louisa F. Kent, a defendant, and the grantee of said Smith, also answered jointly with her husband, Phineas M. Kent.

Decree-below for the plaintiff.

There was evidence showing that Budd, the plaintiff, had paid a larger amount towards the purchase of the property than had Collins, his co-purchaser, and the question is, had he a lien on the property for the excess thus paid by him over and above the amount paid by Collins? The simple fact of his paying such excess gave him no lien. 2 Spence Eq. Jur. 803. — Sug. Y. & P. 902. The article of agreement between Budd and Collins stipulating for a lien, created no legal one, for it conveyed no interest in the property. If it created an equitable one, still, a sale of the legal title to an innocent bona fide purchaser would divest it. In this case Brown' was the pur*445chaser at the sheriff’s sale, and it is contended that he had notice of the lien, having been informed of it at the said sale. We are not satisfied, from the evidence, that notice of Budd's equity was given to any one at that sale; (see Foust v. Moorman in this Court, (1) as to what constitutes notice); but before the filing of this bill Brown had conveyed the lot to Nicholson and Smith and received pay for it, and Smith had sold and conveyed to Kent and received the consideration. Hence, admitting Brown to have had notice, still, if Nicholson and Kent had not, and they are otherwise Iona fide purchasers, they will hold clear of the lien. 1 Story’s Eq. Jur. p. 438. There is no pretence that Kent had notice, and there is no evidence that Nicholson had. One witness testified that he saw him at the court-house once on the day the sheriff’s sale took place; but he says there was a large collection of people there; Nicholson was not a bidder at the sale, nor is it stated that he was present when any notice of any lien was given, nor that he knew of any. This surely does not bring home notice to him; and notice is denied in the answers. No ground remains on which an attempt can be made to sustain the decree below, except that of inadequacy of consideration, and, indeed, no attempt has been made here to sustain it on that ground. As a general rule inadequacy of consideration alone is not sufficient cause for impeaching a contract. Chit. on Cont. 31, 684. — 1 Story Eq. Jur. p. 266. In this case one or two witnesses value the property at 1,800 and 2,000 dollars. It sold at sheriff’s sale for 400 dollars. Brown sold to Smith and Nicholson for the same price, and Smith sold his half to Kent for 250 dollars. There is not a circumstance proved, or attempted to be proved, aside from the fact of the consideration, tending to show that the purchases were not entirely bona fide; and if, as was testified in the case by Mr. Craioford, the property was incumbered to a large amount by mortgages and judgments, we cannot say that the consideration was inadequate even.

It should be remembered that the above mentioned agreement between Budd and Collins, was, in 1845, ac*446knowledged and recorded, but not being an instrument by statute to be recorded, the record of it was no jgggj notice of its contents. Caldwell v. Williams et al. in this Court (2).

R. Crawford, for the plaintiffs. H. P. Thornton, for the defendants. Per Curiam.

The decree is reversed with costs. Cause remanded, &c. (3.)

See ante, p. 17.

See 1 Carter’s Ind. R. 405.

) Smith, J., was absent.