56 Tenn. 269 | Tenn. | 1872
delivered the opinion of the Court.
This bill is filed to enjoin a suit on a note for-tbe last payment on a purchase pf town lots in the town of Huntsville, Alabama, with tanyard and implements used in carrying on the business, and three negroes, said note dated November 1, 1861, and also-for a rescission of the contract. On coming in of
The bill alledges the property to have been purchased by complainant and one Wm. J. Smith, and their joint note given for the same; that Smith was joined in the suit at law, but never served with process. It is the settled law, that when the contract is executed by conveyance, the complainant in possession under a deed with covenant of warranty of title, in the absence of fraud, eviction, or insolvency of. the vendor, equity will not relieve by rescission or by enjoining the payment of the purchase money for mere defect of title. Barnett v. Clark et al., 5 Sneed, 437. He must, in such cases, be left to his remedy at law, on the covenant of warranty in his deed. 5 Sneed, 437; 8 Hum., 519.
The allegations of the bill would seem, in part, to go on the theory that the covenant of warranty itself, the title not being good, would be a sufficient fraudulent representation to invoke the action of the court j or at any rate, to make out a case of failure of consideration, as it charges that “Norman, at the time of the sale, represented that his wife had a perfect
It is insisted, however, that the fact that the vendor and covenantor in this case is a non-resident of the State of Tennessee, is a sufficient ground to give the party a standing in a court of equity for rescission or injunction against the payment of the purchase money. While we do not say but that in a case of clear want of title in the vendor, where the sale was of land in Tennessee, the parties, or the purchaser, being a resident of the State at the time
The next allegation of the bill on which complainant seeks relief is, that the defendant, Norman, is, and has been for many years, a lawyer .in practice in the State of Alabama, and as such knew at the time he sold said property to complainant and Smith, of the irregularities and defects in his wife’s title, as specified in the bill, and in making said sale and suppressing these facts, c'd representing and warrant
The question then is, Does the bill allege such defect of title, for the defect is specifically pointed out, as that Norman, representing the title to be valid, has-been guilty of fraudulent misrepresentation ? It is. charged that Susan M. Cook was one of the heirs, of said Henry Cook, the original owner of the land, and that to the proceedings under which it was sold,, she was not a party in any way, “nor was it binding on the minor children of B. A. Cook, who was a son of Henry Cook, deceased.” The last allegation standing alone would not be sufficient, as it only states a legal conclusion, but no fact, except that they are minor children of B. A. Cook, who was a son of Henry Cook, deceased, on which to base the conclusion. It may be that B. A. Cook is still alive, so far as the bill shows.
On looking, however, at the proceedings in Probate Court of Alabama, under which the' land was sold, made part of the bill as an exhibit, we find
Upon examination of the record, we deem it unnecessary, perhaps improper, to decide definitely upon the question of validity of title as set out in complainant’s bill, as the case must go off on another ground. The purchase was made by Merriman and Smith jointly, the conveyance taken to them jointly, their joint note given for the balance of the purchase money. We can see no principle on which a bill can be filed by Merriman alone to have the contract rescinded. It is an entire thing, a rescission must be of the contract as to the entire land. We can