69 Tenn. 534 | Tenn. | 1878
delivered the opinion of the court.
On the 7th of September, 1861, the complainant, James S. Snyder, bought .from the Union Bank, at the price of $25,000, certain lots in the city of Chattanooga, on ■which were situated a mill and distillery, and known as the Bell property. He paid ($5,000) five thousand dollars down, and executed notes, at four and five years, with interest from date, for the residue of the purchase money. The bank conveyed to him the land by deed in fee, retaining a lien for the unpaid purchase money. Snyder sold an undivided one-fourth interest in this property to William Snyder, an undivided eighth to Haldeman, and another eighth to Bruce. On the 14th of February, 1863, he sold and conveyed to the defendant, W. W. Summers, by deed in tee with covenants of warranty, one undivided fourth of said property for $7,500 in Confederate money then paid, and the assumption by Summers of the payment of one-fourth of the unpaid
The- defendant, Summers, went into possession of the property bought at once, receiving the rents, issues, and profits of the business to the extent of his one-fourth share. The business of the mill and distillery was at the time profitable, the net proceeds being shared by the joint-owners and partners as they were earned, and so continued until Chattanooga was occupied by the Federal armies. During their occupation the buildings on the land were destroyed. After the war the Union Bank filed a bill against Snyder
The evidence in this cause renders it certain that the profits of the mill and distillery property, and the proceeds of the sale of stock on hand and saved when the Federal army entered Chattanooga, were so divided between the co-owners and partners that neither could demand an account, and that an account would be of no advantage to the defendant. It is equally certain that he never paid either to the Union Bank or to the complainant any portion of the purchase money of the Bell property. The litigation turns, therefore,
Independently of contract, whenever a mortgage debt forms a part of the consideration of purchase, equity has always implied a promise on th,e part of the vendee to indemnify the vendor against the personal obligation to pay the mortgage money; for having become owner of the estate, he must be supposed to intend such indemnity. Tweddell v. Tweddell, 2 Bro. C. C., 152; Waring v. Ward, 7 Ves., 337; Champion v. Brown, 6 Johns. Ch., 409; Tichenor v. Dodd, 3 Green Ch., 454. Of course a positive promise fixes the liability beyond question, and establishes between the parties the relation of principal and surety. It has been repeatedly determined that where a person buys land absolutely for a stipulated price, and, instead of paying the whole of it to his grantor, is allowed to retain a part, which he agrees to pay to-
In that view, the warranty of title contained in the deed would be against all claims except the claim of the Union Bank, to the extent of the $5,000 assumed by the vendee. If, now, the land had. been sold in satisfaction of the bank lien, for any part of
The decree will be affirmed, leaving the costs below to go as adjudged by the Chancellor. The appellants will pay the costs of this court.