65 Tenn. 342 | Tenn. | 1873
delivered the opinion of the court.
This bill was filed by McWhirter to enforce his’ lien as vendor upon three town lots and a fraction in the town of Calhoun, McMinn county, sold by him to defendant Swaffer.
Swaffer files a cross bill praying for a recission of the contract, upon the ground of fraud and want of title to the property in the complainant at the time of his purchase. The Chancellor, upon the hearing, dismissed both bills without adjudging the merits, because the proper parties were not before the court, and both parties have appealed.
The sale was made on the 17th of February, 1870. McWhirter executed a deed conveying the lots Nos. 55, 56, 57, and a part of No. 25, all adjoining and constituting one property, to Swaffer. The deed contains covenants of seisin and general warranty. It shows that the price of the property was $2,000, for which four notes of $500 each were given, falling due respectively the 1st of November, 1870, 1871, 1872, and 1873; but the deed does not in terms retain a lien upon the property for the payment of these notes. The first of these notes was assigned and transferred by Swaffer to Wm. M. Seahorn before it came due.
He charges that these defects of title were by McWhirter fraudulently concealed from him, and that McWhirter is insolvent; says he has offered to rescind the contract. The bill prays for á recission and general relief. The answer of McWhirter denies fully the charges of fraud and insolvency, and says he had a valid title to lots Nos. 57 and 25 by a decree of the Chancery Court, under which they were sold. That McGhee and McCarty had never owned these two lots, but had owned lots Nos. 55 and 56, but their title had been' divested out of' them by a decree of the Chancery Court, under which they were sold and vested in J. PI. Eiffert, and that respondent Mc-Whirter had purchased these lots from Eiffert and paid him for them, and held his bond for title, but had no deed. That these facts were fully disclosed to Swaffer upon the sale to him, and that respondent agreed to procure Eiffert's title before the last note fell due, which was satisfactory. to Swaffer, and he
The Chancellor held that Seahorn, the assignee of' the first note, was a proper party, and for this reason dismissed both bills.
It appears that Seahorn filed a bill seeking to assert a lien upon the lots in question for the amount .of said note, but afterwards dismissed his bill so far as this relief was sought.
We 'think the Chancellor erred in dismissing the bills for the reason answered. It is well settled that where a vendor sells and conveys by deed without retaining in the deed an express lien for the purchase money that the vendor has for purchase money, does not pass to the assignee of note taken. It is different where no deed is made or an express lien is retained. See Thompson v. Pyland, 3 Head, 537; Green v. Demoss, 10 Hum., 371.
In this case the deed does not contain an express reservation of a lien. It says: “In consideration of' $2,000, to be paid me in four instalments, viz.,” giving the amount of the four notes and the dates they severally fall due. I have bargained and sold,” etc.,, but no further reference is made to the purchase money. The purpose to retain a lien, may clearly be inferred from, the fact the notes are described in the deed, but it' cannot be said that the deed contains an express lien.
Upon the question raised by the cross-bill, it being a case of executed contract, the party seeking a recission must make . out a case of' fraud or insolvency upon the part of his vendor, if he seeks an abatement of purchase money for defects of title. Upon the question whether McWhirter disclosed to Swaffer the true .state of his title, to lots Nos. 55 and 56, the proof is in direct conflict. The answer most solemnly avers that he did, and in this McWhirter supports his answer by his own deposition and by the testimony of his son and mother-in-law, while Swaffer, in his deposition, most vehemently denies it, and he is supported by another witness.
The onus being upon Swaffer to make out the fraud, we must hold, upon this state of the record, that he has failed to do so.
We agree, thart if a vendor .having no title, sell to an Innocent vendee fraudulently .concealing his want of title or falsely representing his . title to be good, that this is a fraud for which the contract may be set aside, although executed, and in such case of actual fraud the vendee will not be compelled to take an after- acquired title: Wood v. Norton & Johnson, 6 Hum., 309; Mullins v. Jones, 1 Head, 517.
But this is not so if the vendor has a bona fide-
2. We think the charge that McWhirter is insolvent is not sustained. The title to all the property claimed by him may not be clear or its value not so great as he assumes, but we think the weight of proof shows him to be solvent to the extent of any claim said Swaffer can justly have against him for breaches of the covenants in his deed as to these lots. The result then is, that this is not a case for recission.
Is there any ground there to resist the relief prayed for by McWhirter? We see no reason to doubt his title as to lots 57 and 26, he producing a decree vesting him with title, and shows by possession since 1860. The buildings were principally upon 57. Having met the specific charges of the bill, and the contract being executed, he is not bound to further deraign his title.
Upon the facts of this case we think it not proper not to pronounce a decree for a sale of the property at this time, but to remand the cause, with directions that further time be allowed; the complainant McWhir-