44 Ky. 266 | Ky. Ct. App. | 1845
delivered the opinion of the Court. — Judge Marshall did not sit in this case.
In 1809, William Marshall, of Virginia, sold or exchanged to James Edmondson, of the same state, 5000 acres of land, out of a large tract of upwards of 13,000 acres, lying in Kentucky, which he held in conjunction with Charles Marshall, and gave his bond to convey, with a warranty and stipulation to refund twenty shillings per acre, with interest, in case any was lost. In the fall of 1809, Edmondson, with his family, removed to Kentucky, and by the direction of A. K. Marshall, the agent of William Marshall, he and his son-in-law, Benjamin. Mosby, settled on the land, each purchasing out the ini
Early in 1810, under the direction of A. K. Marshall, the agent, 1000 acres was divided and allotted by Commissioners, to Edmondson, as a part of his purchase, embracing his and Mosby’s settlement, and 1000 acres, with £60 to be paid by Edmondson, as an equivalent portion, was allotted to Charles Marshall. The £60 was paid. Mosby under some contract with Edmondson, claimed 500 of the 1000 allotted to the latter, covering his settlement, and in the allotment the 500 acres wa3 marked off to him. Mosby having erected a distillery and horse mill, and made other valuable improvements, in 1812, by the knowledge, and probably, by the consent of his -father-in-law, sold his 500 acres to Anderson and Payne, for 15,000 gallons of whiskey, to be paid in annual instalments, and executed his bond to convey 150 acres to the former, and 358 to the latter, there being 8 acres surplus. A note for one of the instalments having been assigned to Wallace, he recovered a judgment thereon, which was injoined by Anderson and Payne, in a bill filed against Edmondson, the heirs of Mosby, he having died, and others, alledging a want of title in Mos-by, and an inability to convey, and praying a conveyance, if to be had, if not, a rescission. In the mean time, Edmondson filed his bill against the heirs of William Marshall, he having died, for a title, and in 1817, obtained a decree against them as infant non-residents, for a conveyance of the moiety of the whole tract, embracing upwards of 500 acres more than his purchase, and a conveyance was accordingly made by a commissioner.
Immediately on the receipt of this conveyance, Edmondson executed to Anderson and Payne each, deeds for their respective parts of the land purchased by them from Mosby. This conveyance was made under an agreement with Anderson and Payne, containing stipulations, as to the payments to Edmondson, and the release of Mosby’s administrators and heirs from responsibility on his bond to them, and a recital that Mosby had no title; but the conveyance was evidently superinduced by the equity or claim held by Mosby on Edmondson for a title.
This is a clear case of equitable right in favor of Clary’s heirs. And were it not for the numerous decisions of
From these facts, and as the means of preventing a gross fraud upon the purchasers from Mosby, it would not seem to be a great stretch of presumption to infer that Mosby held a valid and binding contract upon Edmondson for a title. But waiving this ground of equity, that there was at least a parol contract for a conveyance, cannot be doubted. It has been repeatedly determined by this court, that a parol contract for the sale or lease of land for a longer term than a year is not void. The statute withholds the right of action to enforce such a contract, but allows to it operative effect as a shield of defence, and if subsequently perfected by deed, such deed will have relation back to the origin of the parol contract, so as to overreach an intermediate executory sale to a stranger.
The vendor may avoid it by pleading or relying upon the statute, yet he is left at liberty to waive his right to the defence and consummate the contract, and cannot be deprived of his election to do so by a stranger. Though a vendor is not legally bound to fulfil his contract by a
Applying these principles to the case before us, Mos-by holding a parol contract with Edmondson, sold to Anderson and Payne ; they had paid a part of the consideration to Mosby, who had died, and a judgment having been recovered against them for another instalment, by an assignee of the note, they had enjoined its payment, but were pressing Edmondson and Mosby’s heirs fora title, if to be had, and if not, fora rescission of the contract, and a restitution of the consideration which had been paid. Edmondson had procured no legal title from Marshall’s heirs, but immediately on obtaining a title under a decree of court, which at the time was deemed valid, he executed deeds to Payne and Anderson for precisely the respective parcels to which each were entitled under the purchase from Mosby. It is obvious to us that these deeds were based upon and superinduced by the equitable or mo.ral claim which they held upon Edmond-son, by and through their purchase from Mosby, and was intended to quiet the claim by perfecting their title to the land purchased. It is true that the residue of the consideration that had not been paid to Mosby, or an agreed sum in lieu of the residue, was by the terms agreed on, to be paid to Edmondson, but he exacted a bond from Payne and Anderson, in which, they are made to acknow. ledge, that Mosby had no title, contained stipulations that they should take no recourse against the administrator or heirs of Mosby, for the amount paid, nor persue them upon their bond for a title.
The acknowledgment that Mos^y had no legal title, was true, but he may have held an equitable claim upon
And if they had not, neither have they,(after Edmond-son has waived the benefit of the statute, by executing written deeds,right to defeat the contract by pleading the statute, or relying upon its parol character. They are strangers to the contract, and have no right to defeat it against the will of the parties to the same. The statute was made for the benefit and protection of the parties to
If Marshall’s heirs had other equitable grounds of defence under their contract with Edmondson to defeat his recovery of the land embiaced in Mosby’s purchase, it is true that Mosby’ equity under Edmondson, and consequently the derivative equity of Clary’s heirs, would fail with the failure of Edmondson; but it would equally fail though the contract of Mosby had been in writing; so that it matters not to Marshall’s heirs, whether Mos-by’s contract was or was not in writing, so far as their rights under their contract with Edmondson is concerned.
It is true that a decree has been rendered on the bill of review against Edmondson, not only reversing the decree which had been obtained for a title against Marshall’s heirs, on account of the surplus embraced in the conveyance, but also allotting the surplus so as to embrace Clary’s purchase, and a release or re-conveyance, directed and made to ‘Marshall’s heirs, of the same; and this decree being unreversed, is conclusive against Edmond-son. But Clary’s heirs were no parties to this proceeding, and cannot be haired of their equity, or precluded fiom their right to assert it, and the more especially as Marshall’s heirs, unquestionably had constructive if not actual notice of its subsistance long before and during the pendency of their suit. They were in possession, cultivating, using and claiming the land as their own, nndera deed executed to them by Anderson and Payne who held under a deed from Edmondson, and both deeds were duly recorded. These purchases were known in the neighborhood, and had been frequently the subject of litigation. The possession alone, was sufficient to put them upon enquiry, and that enquiry must have lead to the ascertainment of their claim.
Indeed it is questionable whether notice to the heirs of Marshall, constructive or actual, of their outstanding equity, was at all necessary to bar them of their right to assert it, if they were not made parlies to the suit.
It has been frequently determined by the English courts, as well as by the courts in New York, and the like doctrine has-been settled by this court, that a subsequent
But conceding the right to redeem in the case of a decree for a mere foreclosure without notice, the rights and condition of the parties are not essentially different in that case and in this, and the rules of equity applicable to both it would seem, ought not to be different. In that case the proceeding and decree are against the mortgagor, the original party to the contract of mortgage, in this the proceedingand decree, was against Edmonson, the original party to the contract of sale. In that the proceeding .is against the mortgagor as the presumed and only known .holder of the right to redeem. In this the proceeding is against Edmondson, the presumed, and as it is insisted, the only known holder of the legal title or equity. But in the former case the mortgagor had parted with his equity to redeem, by mortgaging it to another. So in this Edmondson had parted with his equity to Clay. In the former case the senior mortgagee is secured and quieted
It being established that Clary’s heirs have a right to assert under Mosby’s contract with Edmondson, all the equity which the latter derived by his purchase from Marshall, and that they have not been barred or precluded of that right, by the proceedings and decree on the bill of review against Edmondson, the question still -remains to be decided, have they, by the facts exhibited in this record, established an equity to have the specific land embraced by their purchase conveyed to them by Marshall’s heirs? And a glance at the facts already stated, can lead to no other conclusion than that they have.
The allotment and settlement of Edmondson on the 1000 acres embracing the land in contest, by the authorized agent of Wm. Marshall, the lasting and valuable improvements made on the same by both Edmondson and Mosby, the payment of the difference by Edmondson to C. Marshall, in the value of the land, allotted over the value of the 1000 allotted to C. Marshall, the subsequent
It was it is true, said by this Court, in the case of Edmondson vs Marshall’s heirs, (6 J. J. Marsh. 450,) that “the answer of Edmondson bringing forward matters of fact, was properly rejected by the Court,” the bill being a bill to review and reverse the decree for errors apparent on the face of the record only. This may be true as to the mere reversal only, but so far as the proceeding sought a location of the 5000 acres sold, or a location and re-con
It is also strenuously urged that Marshall’s heirs have satisfied the bond of their ancestor by conveying the full quantity of his sale. If the bond has been satisfied by withholding that which should have been conveyed, and to which the original parties looked as a prominent inducement to the purchase, and conveying that which embraced the hills, and was not at the time, worth one fourth-of the estimated value fixed upon the land sold, and which, as is most probable, was not at all in the contemplation of the parties to the contract at the time of the sale, then they have satisfied their bond. If they were bound in good conscience, to embrace in the conveyance the 1000 acres allotted as above shown, then they have not satisfied their bond, and Clary’s heirs being no parties to the original proceedingdr bill of review, are in no way responsible for the errors in either, and cannot be concluded by them. It may be that Marshall’s heirs, upon conveying to Clary’s heirs, may have the right, by proper proceedings, to be restored to the land which they ought not to have conveyed; but whether they can or cannot, they have no right to escape from conveying that which they were equitably bound to convey. The whole 1000 upon which Edmondson was settled as a part of his purchase, seems by the proof in this case, to have been set apart to Marshall’s heirs, in the surplus. According to the principle adopted in the location of the surplus, had there been a few hundred acres more of surplus in the large tract, Edmondson and those claiming under him, would have been-pushed upon the hills and poor
It is^therefore, the opinion of this Court, that the decree of the Circuit Court be reversed and cause remanded, that an estimate may be made of the rents from the time that Clary’s heirs were ousted of the possession by the ejectment, and a decree rendered in their favor for the same, against Marshall’s heirs or Martin P. Marshall, since he has been let into the possession under his purchase from the heirs of Marshall, and also a decree for a conveyance of the land claimed by them, with costs, and they are entitled to their costs in this Court.