13 Ky. 365 | Ky. Ct. App. | 1823
Opinion op the Court. .
Walter Carr filed this bill, with an injunction, against a judgment at law obtained against him by Wil-Jiam Pawling, assignee of John South, on a note for two hundred pounds. The object of his bill is to have the specific performance of a contract with South for the sale of lands, or a conveyance of the legal estate, or to be relieved from the payment of the note in question, which was given as part of the price* Carr, at the date of the purchase, which was on the 10th day of September 1787, paid to South a negro, at the price of one hundred pounds, and executed a note for one hundred more, and the note in contest for two hundred, as the whole consideration for the land.. South, at the feamq time executed to Carr his bond, in a large penal sum, conditioned as follows:
“ Whereas, some time past, William Hoy and, John-South made a purchase of two thousand eight hundred acres of land, of Patrick Callaghan; the said land lying on Licking, adjoining Ruddell’s Station, on the lower-side thereof, which the Hoy took the said Callaghan’s.bond for said lands: Now these are, therefore, to cerfy, that the said John South hath sold the one equal*367 half of said land to Walter Carr, his heirs, executor's or administrators; and the said South obliges himself to make the said Hoy assign over the one equal half said bond, in every respect, to him, for the same; then, when the said assignment is made, the said South is clear of said bond from said Carr, and this obligation to be void 5 otherwise to remain in full force in law.”
At the same time, South assigned to Carr, by a writ* ten assignment without recourse, a bond executed by Patrick Callaghan to John Martin, binding said Patrick to convey to said Martin 200 acres, part of the preemption of said Patrick, adjoining his settlement on Licking, being part of the same, lands referred to in the aforesaid bond from South to Carr. This bond of Patrick Callaghan had been previously assigned to South by Martin. Carr charges that South, at the time of this contract, represented the title as safe, and that it was in said Patrick Callaghan, who was ready to convey it; and that Ploy himself hada letter of attorney from said Patrick, authorising said Hoy to convey the land at once, which letter of attorney he, Carr, saw upon record; that accordingly, shortly after this contract with South, Hoy likewise continued the deception, by representing that South was an equal partner with him iri the, purchase from Patrick Callaghan, and that the title was ready; and that, in consequence of South’s bond, Hoy agreed to assign to him one half of the contract with Callaghán, which was for 2,600 acres, instead of2,800, (the bond of Callaghan to Martin for 200 making the 2,800,) and that in said assignment to him by Hoy, it was agreed that the lands should be divided; in other words, that Hoy should assign to Carr a certain 1,400 acres, and reserve to himself another 1,400. That the whole land was two settlements, with their adjoining pre-emptions, obtained from the commissioners in 1779, one in the name of said Patrick Callaghan, and the other in the name of Daniel Callaghan, and that of said Daniel was represented to be the most valuable ; and accordingly Hoy assigned to him, Carr, the settlement and pre-emption of Daniel, on the back of the bond from Patrick, and reserved Patrick’s for himself; and as Martin’s bond on Patrick was for part of Patrick’s own pre-emption, to make Hoy’s title complete to the whole of that claim, he, Carr, assigned it to Hoy. He represents, that in all this jie was deceived; for,
John South answered, and admits his contract wijbt Carr; denies that he ever had any thingto do with the purchase from Patrick Callaghan, by Hoy, or that he knew anything about it; denies being acquainted with the contract, personally, between Worthington, Garrett and Johnson; but admits its existence, and that the claim sold to Carr was derived that way; and admits that he did not teil Carr any thing about the claim of Johnson and Garrett, or that the title was in them. He contends that ail he was bound to do, was to assign over the bond of Patrick Callaghan to John Martin, without recourse, and to procure Hoy to assign over the. contract with Johnson, or that of Callaghan; and insists, that having done so, he is clear, and that the complainant, by taking an assignment from Hoy, of Daniel Callaghan’s settlement and pre-emption, and giving up that of Patrick, instead of an undivided moiety of both, has essentially altered the contract, and therefore can have no relief; especially, as the complainant has assigned over to Hoy the bond from Patrick Callaghan to John Martin. He admits that he refused to rescind, except so far as to give up the bond or note for one hundred pounds, named in the bill, as the difference between nine and fourteen hundred acres; because that the complainant, Carr, had assigned away the aforesaid Rond from Martin, and could not restore it.
The suit was brought in the old supreme court for the distx’ict of Kentucky, and on the dissolution of that court, was transmitted to the court of quarter sessions for Fayette county, where the papers were consumed at the conflagration of that office; and in 1803, the complainant below filed a bill exhibiting copies of the old bill and other papers, and also stating that in the mean time Johnson or Garrett, the patentees, or both of them, had conveyed the land to sundry persons, who bad settled thereon, who, he charges, had full notice of his equity; and if they had not, that they were all purchasers pendente Hie, and affected by his suit; and he makes them defendants, and prays a decree against them for the land.
Two of these new made defendants answer, and show that they do not hold any part of Daniel Callaghan’s settlement and pre-emption, claimed by the complainant. A third, George Hamilton, answers, admitting that he .holds part of Daniel Callaghan’s settlement and preemption; and all show, that Thomas Johnson, one of the patentees, had conveyed a part to Benjamin Harrison; that the two devisees of Thomas Johnson, and the said Henry Garrett, had conveyed the whole of said land, including both claims, to Daniel Callaghan, after tile death of Patrick, and that said Daniel Callaghan liad sold to them, and they exhibit the conveyances accordingly. They deny any knowledge of the pendency of this suit, or of the equity of the complainant; insigt they are innocent purchasers for a valuable consideration without notice, and that, as by the complainant’s own showing the papers of the suit were long lost and neglected, -after (lie dissolution of the supreme court, they ought not to lie affected as pendente lile purchasers. The rest of these purchasers, who were made defendants, filed no answer. In the progress' of the cause, the court below empannelled a jury, to enquire whether it was or was not a custom in this country, in the years 1779, 1780-01, &c. for holders of settlements and pre-emptions to give one half for surveying, obtaining preemption warrants and paying all expences to carry such claims into grant. The jury responded to this inquiry, that such custom did exist.
The court, on a final hearing, decreed that the complainant below was entitled to recover 900 acres, td
1. We would barely observe, that there is no pretext for making these purchasers subject to the effect of the lis pendens; becausethe patentees, Johnson and Garrett, nor neither of the Callaghans, nor Hoy, or either of these purchasers, were made parties to the original hill in the old supreme court, nor were they introduced into the suit sooner than the year 1803, in Fayette; before, which period, the title was all conveyed, in both tracts, to Paniel Callaghan, and from him to the defendants, so far as they have answered; and we appre-bend that to affect a party as purchaser of a title pendente lite, it is necessary to show that tbe holder of the legal title was impleaded before the purchase which is to bo set aside. The controversy,, before the year 1803, was purely between the complainant below, on one side, and South and Pawling’s representatives on tbe other,, neither of whom held the title which was to be affected, by' the controversy,
2. The only claim against them, must he, that they were purchasers with notice of the complainant’s equity 5 and as s6me of them have not answered or denied this allegation, they must rely, pn the insufficiency of the equity of the complainant, tested by. its own strength, on the vouchers filed and brought out in the answers of the other defendants.
3. If, then, the purchasers against whom tills decree is rendered, are affected, it must be by virtue of the contract between Worthington and Johnson and Garrett, assigned by Worthington to Hoy. Here, at once, an insuperable difficulty is presented. What authority had Worthington over the claims of the Callaghans? The only warrant, we suppose, was intended to be found in the inquiry of the jury, to wit, the custom of the country. But certainly this is no warrant. Be? cause contracts were usual at such certain terms, did it authorise any person, without the consent of the right owner, to take his estate on these terms? Can custom place the lands of every one in market, against his will, and fix terms by which he must abide? Certainly not. It is shown by the writings between Worthington and Hoy, that Worthington had no authority, &nd that he assumed this control of the claims, as the friend of the Callaghans. If they ratified the act, they would have been entitled to the residue, after, the 1,200 acres were deducted, and Johnson and Garrett to that 1,200; if
The only remaining ground set up by the complainant below, is a letter, or letters, addressed to him by Henry Garrett, one of the patentees, dated in 1789, in which he expresses a willingness to convey his title to the complainant, and an unrecorded deed, executed by Johnson, the other patentee, in 1790. These the complainant has exhibited in his bill, as evidence that his equity was recognized by the patentees, and therefore he has a right to the legal estate, which has been since conveyed by Johnson and Garrett to Daniel Callaghan, and by him to those purchasers whom the complainant below charges to be the guilty purchasers of the same claim. As to the letters of Garrett, they do express a willingness to convey his title; but it is in pursuance of the contract which he had given, being surrendered to him, which is, no doubt, his contract with Worthington, by which he supposed himself bound. We have already seen, that Worthington had no claim to the title in equity, and that it was vested in Daniel and Patrick Callaghan, to whom the land in equity belonged; and, therefore, any obligation of Garrett to convey to others, ought not to he enforced, over the head of this preexisting equity, wherever it appears. Here, the equity of the Callaghans is evident, and might have been known to the complainant below, long before the date of these letters, although he did not know it when he first contracted with South.
4. The simple story is this: Johnson and Garrett procured these claims from Worthington, who had no authority from Daniel and Patrick Callaghan to sell by this contract, or by Worthington’s assignment.
5. The deed presented from Thomas Johnson, one of the patentees, presents a question somewhat different. This is not recorded, and the conveyance made the devisees of said Johnson since, in 1799, is duly recorded in the proper office, under which the purchasers derive their title. If they had actual notice of this pr¡or deed by Johnson, before they received their’s. from his devisees, the claim is available against them, in a court of law, and therefore there is no necessity of application to a court of equity. If, on the contrary, these purchasers had no actual notice, this deed of Johnson to the complainant cannot prevail against them, ei~ theratlaw or in equity, according to the provisions of our 3ct °f assembly regulating conveyances. We would not be understood to say, that a court of equity would, in no case, give relief against a subsequent re-corc]e(j conveyance, in favor of a prior deed not recorded, where the subsequent grantee had, actual notice of the first, and decree the subsequent deed to he released, lest, through time, accident or the death, of; witnesses, it might become an available claim, when, in Us inception, it was invalid at law. But assuming, for the sake of argument, without expressing any positive opinion on the abstract question, that equity would afford, such relief, it does not follow, that if in such case the holder; ■ of the subsequent deed should show, that although his deed did not pass the legal estate, because of the prior conveyance and notice thereof, yet he ought to have
6. But we do not conceive that the complainant below is entitled to no relief against some other of the parties in the cause. It is true, that South was not bound to convey to him, or to warrant the claim; that h,e was only bound, by the terms of the contract, to assign the bond of John Martin, and to cause Hoy to assign the cj.aim on Patrick Callaghan. It is, however, evident, from the contract and his own answer, that he deceived the complainant with regard to the true situation of the title which he sold. He denies that he had any thing to do with the contract between Hoy and Patrick Callaghan, or that he was a partner in it, when his own bond alleges the contrary. He insists that the claim derived from Worthington is the only one with which he was acquainted, when, by his bond, he sold a quite different equity derived from the Callaghans; and we have seen that the equity of the Callaghans is the important point, and that from Worthington is nothing. There must, then, to say the least of it, have been a fatal mistake by each party, which would demand redress. He admits that he did not tell that the
7. The remaining question is, ought the complainant to be barred from this relief by any of his subsequent acts? We conceive not. It is true, he took back his bond for one hundred pounds, and agreed to pay it conditionally, if he got more than 000 acres. In this, he only exhibited a willingness to get what land he could, an<^ no*; re^ease lhe effect of any imposition upon b™ in the original contract. It is also true, that he divided with Hoy, by taking an assignment of the claim of Daniel Callaghan, leaving that of Patrick to Hoy: but then he was still under the same delusion about the title, into which South had led him, and in which Hoy, who was to assign for South, contributed to confirm him. besides, in this act he only divided the land, and he was under no obligation to hold it jointly forever. It is also true, that'he assigned the title bond from Patrick Callaghan to Martin, and by South assigned to him, to Hoy. This, however, was induced by the same deception produced by the acts of both South and Ploy ; and’ a court of chancery is adequate to take this bond frorp the hands of Hoy’s representatives, and cancel the assignment, and restore it to South, which can be done when the contract is set aside. We would, however, here remark, that there is a defect of parties, necessary before the court can accomplish these things.
8. The controversy is about landed contracts, in which the legal representatives of Hoy may have a deeper interest than the personal, and his executors a*onc have been brought before the court, and it will be necessary to bring his heirs or devisees into- the cause by proper proceedings, before these things are consummated.
9' ^ie representatives of Pawling, who hold the judgment against the complainant below, it would seem necessarily to follow from this opinion, that some opinion ought to he delivered as to their interest in this
The decree is, therefore, reversed with costs, except as to Pawling’s representative, and the cause remanded, with directions to dismiss the bill with costs, as to all the defendants there, except South and Hoy’s representatives, as to whoip, further proceedings may pe had, • not inconsistent with this opinion.