16 Ark. 288 | Ark. | 1855
delivered tbe opinion of tbe Court.
On tbe 12tb of February, 1853, Eobards executed to Cooper bis deed of mortgage for certain negro slaves, to secure tbe payment of a promissory note of that date, executed by Eobards to Cooper, for fifteen hundred and fifty dollars, payable on tbe 1st day of January next-thereafter. After tbe note fell due, Cooper filed bis bill in chancery in tbe Phillips Circuit Court, to foreclose tbe mortgage and subject tbe slaves to sale. Eobards in bis answer admitted tbe execution of tbe note and mortgage, and that part of tbe note still remained unpaid; but set up by way of cross-bill, that tbe note avas given in consideration of a tract of land sold by Cooper to Eobards, and conveyed to .him by deed, with covenants of Avarranty of title, &c. That at tbe time of tbe purchase of tbe land, and the execution of tbe deed, tbe land Avas incumbered by á deed of .mortgage executed by Cooper to "William II. Eingo; that be (Eobards) was apprised of tbe existence of the mortgage to Eingó, at • the timo of bis purchase, and that Cooper promised that be Avould satisfy and discharge tbe same, and thereby remove said incumbrance before tbe note fell due, but that in fact said incumbrance, has not been removed, and that be is apprehensive that -the land may be sold to pay tbe same. Tbe complainant.is made defendant to tbe cross - bill, and called upon to answer with a prayer, that complainant be enjoined from proceeding to collect said mortgage debt, until such incumbrance is removed.
Tbe complainant demurred to tbe cross-bill. Tbe ground of tbe demurrer Avas, in effect, that tbe affirmative matter set forth in defendant’s answer, Avas insufficient to entitle him to tbe relief sought. Tbe court below sustained tbe demurrer; tbe defendant declined all further defence, and a final decree was rendered for complainant, from which tbe defendant has appealed.
There can be no question, but that the demurrer to the cross-bill was properly sustained. The verbal promise of Cooper, that he would remove the incumbrance before the note became due, added nothing to, and formed no part of, the contract. If it had been the intention of Bobards to withhold the purchase money until the incumbrance was removed, he should have so qualified his written promise to pay. The mere fact that there was an in-cumbrance upon the land at the time of his purchase, whether known or not, will neither entitle him to a rescission of the contract, nor to arrest the recovery of the note, executed for the payment of the purchase money, until the incumbrance is removed. Having entered into possession of the land purchased, the defendant must rely upon his covenants of warranty of title and quiet possession. Such is the general rule upon the subject, sustained by numerous decisions, collected by Mr. Bawle, in his work on Oom-nazvts, page 640 to 657.
There is, in this case, no allegation of fraud, of eviction, or even that suit has been brought to recover possession, nor any other circumstances alleged, upon which to base an exception to the general rule. Bingo, who is alleged to hold the prior lien, has asserted no right to it, and may never find it necessary to do so. Cooper’s ability to pay the sum due to Bingo, is not questioned, nor is there any circumstance developed by the pleadings to entitle the defendant to the relief sought in his cross - bill. Let the decree be affirmed.
