75 Tenn. 463 | Tenn. | 1881
delivered the opinion of the court.
¥m. Swan, as we gather from the statement of the bill in this case, died a number of years since,
In 1866, a decree was made ordering a sale of the lands, directing that ten per cent, in cash be paid by purchasers, balance in two instalments, due at six and twelve months, notes and security to be given, and a lien to be retained on the land for the payment ' of the amount.
At this sale Jos. A. Mabry became the purchaser, among other lands, of a lot in East Knoxville at six hundred dollars. The sale was reported to the court by the clerk, with the statement that, as Mabry was a beneficiary in the case, he was not required to make any payment in cash, but executed his two notes for five hundred and fifty dollars each, with George W. Mabry as his surety. These notes, we take it, however, were for another tract of land purchased at said sale, known as the “Billy Clark” tract, as the price is stated to have been eleven hundred dollars. The report of the sale was confirmed as thus made. Af-terwards,' in 1867, an order was made requiring the clerk to report the amount of purchase money due and unpaid for town lots and other real estate - sold. The clerk reported various parties as owing the amounts stated by him, and at close of his report adds: “Also, from Joseph A. Mabry on his two notes, not paid on the ground of his being a beneficiary in the case,
On the equities assumed from the above facts, an injunction is asked against this decree ordering the lot sold, and that said decree be annulled and set aside .so far as it orders the sale of the house and lot, and then for general relief.
A demurrer was filed to this bill, which was sustained, from which there is an appeal to this court.
The claim of equity in the bill, as earnestly urged by the counsel of complainant, is based on the following propositions: That the parties to the partition proceeding had, by laches, allowed complainant’s title to ripen into an indefeasible one, or that, by raising no objection to the reports of the master which we have referred to, had waived or abandoned their lien retained in the decree ordering the sale; and further, the report saying Mabry was not required to pay in cash, but executed his notes, etc., vitiated' the decree ordering the sale, “and announced to all the world that third persons might deal with Mabry and his assignees as the owner of the lot free from the lien, ■and the parties would look to Mabry’s interest in the fund for payment of the $600 due on this lot.”
We are unable to see anything in the first ground
The fact that when judgments were taken against five other purchasers none was taken against Mabry, can have no .effect on the equities sought to be made out. It only showed that no judgment had yet been
The principle, now axiomatic, stated in Whitby v. ■Armowr, 4 Lea, 686, “that when one of two innocent persons must suffer, the loss must be borne by him whose conduct brought about the injury,” has no application to this case, for the simple reason that nothing done by the parties had any influence in working the wrong. The lien retained on the face of the -decree was notice to the party of its existence. The parties were not bound to actively interfere to prevent any one purchasing from Mabry. The eomplain-■ant shows Mabry as well as Wilcox were solvent when they gave their covenants in their respective •deeds. He accepted these covenants as the only measure of protection then required. The fact that they have since become insolvent, is the cause' of his loss. This is his misfortune, but in no sense the wrong of the parties • defendant' in this case. He must bear the loss occasioned by this unlooked-for mistake or want of foresight on his part, but cannot charge respond-ents with its consequences.
For these and other reasons that might be given,, we affirm the decree of the chancellor with costs.