20 Miss. 73 | Miss. | 1849
delivered the opinion of the court.
The appellees filed their bill in chancery to foreclose a mortgage on two sections of land on Deer Creek, which was executed to secure the purchase money. Thé right to foreclose as to one half of the land is not denie'd, but it is as to the other half, on the grounds set forth in the answers.
The land mortgaged was originally owned by Buckner and Connelly jointly. In the month of January, 1837, Stone met with Robards in Vicksburg, and contracted to sell him half of this land for $12,000, to be paid in negfoes. In order to consummate the arrangement, the parties proceeded to Washington county, the place of residence of Connelly, to obtain titles. From this it would seem that Stone must have previously contracted for the land. Connelly staled to them that he could not convey, as Buckner was joint owner; but he gave a bond in the penalty of ten thousand dollars, or rather entered into an article of agreement, by which he bound himself in these words : “ That for and in consideration of the sum of twenty-four thousand three hundred and thirty-two dollars, agreed to be paid by the said Stone in four equal annual instalments, on the first day of January in each and every year, the said Connelly, by these presents, binds himself, his heirs, executors, and administrators, in the penal sum of ten thousand dollars to convey unto said Stone and Robards by deed in fee simple, the following described tract of land, lying,” &c. This instrüment'was signed by Connelly and Stone, on the 7th of February, 1837. The answers aver that Robards thereupon conveyed the negroes. Matters seem to have rested in this condition until the 16th of May, 1837, when Stone took from Buckner and Connélly a conveyance'in his own name, executed his eight promissory notes for the purchase money, and gave the mortgage on the land to secure the payment, which mortgage was filed for record the 23d of June, 1837.
The proof next discloses a conveyance by Stone to Robards of the residue of his interest in the land, and also an undivided interest in certain negroes on the farm. This bears date 27th of February, 1840. It is also clear that Robards agreed with-Stone to pay the balance of the purchase money remaining unpaid, except one note.
These matters of evidence and the exhibits will show the main ground on which the foreclosure is resisted, as well as the grounds on which the defence is rebutted.
The agreement of Connelly is relied on as vesting in Robards an equity in a moiety of the land which could not be affected or defeated by the subsequent conveyance to Stone, or his mortgage. Before we proceed to the further investigation of this question, it seems to be proper to remark, that, allowing this instrument its full force, its operation is more limited than counsel seem to suppose. Connelly and Buckner owned the land. Connelly’s agreement to convey did not affect Buckner. Stone and Robards then only acquired an equity to an undivided half. To that much they had a joint claim. Robards was, of course, only entitled to one half of a half, or one fourth of the whole. Stone’s mortgage certain!y incumbered the interest which he derived under Connelly’s agreement, and if Robards’s equity be paramount, it still covers but a fourth of the tract of land. He is therefore asserting a claim which has no sort of foundation, when he seeks to exonerate half the land from the mortgage.
To understand thoroughly the right asserted by Robards, a further explanatory remark is necessary. The agreement of Connelly must be construed by its face; it is not subject to be varied by parol, neither can an agreement be partly in writing and partly in parol. We only understand by it, that Connelly agreed to convey on payment of the purchase money. A time was specified for the payments, but no time for the conveyance, and no intention of parting with title was manifested until
Whilst we regard the conduct of Robards as evincing an intention to waive the agreement with Connelly, such also seems to be the legal effect of his acts. His remedy on the agreement was for a specific performance. Against whom did it lie ? Not against Connelly alone, but Stone was also a necessary party. Connelly had parted with title after the agreement. When one by written contract agrees to sell land, and afterwards conveys to a different person who has knowledge of the previous contract, this other holds the legal title as trustee for the first purchaser, and a court of equity will compel him to convey. 2 Story, Eq. Jurisp. 110-113. The second purchaser is therefore a necessary party to a bill for specific performance. Sugd. on Vend. 164. Stone did purchase with knowledge of the agreement; he held the legal title as trustee. In such cases, the decree would
When Robards and Stone took Connelly’s agreement to convey the two sections, it was well known to them that he never could convey without the concurrence of Buckner, who was joint owner. It cannot be pretended, therefore, that they relied on Connelly alone to convey. Under such circumstances it has been holden, that the agreement will be presumed to have been executed by mistake, and the purchaser cannot insist upon a specific performance, even as to the interest which the vendor had. Sugden on Vendors, 220. It is not necessary that we should take this view of the agreement. It was looked upon, no doubt, as the first step towards the acquisition of title from Buckner and Connelly, and when that was made to Stone, who
In every point of view, then, we consider the agreement with Connelly as having been waived, and as constituting no impediment to the right to foreclose, as to the whole of the mortgaged premises.
It remains to consider of the offsets claimed, which were disallowed by the chancellor. The first is claimed by Stone as against Buckner on the ground of his liability, as co-maker of a promissory note, which Stone claims by transfer from one of the makers, who is alleged to have paid the note. One E. F. Buckner was the principal in the note, and Puckitt, Coffee, R. H. Buckner, Cooper and Fitz, were co-sureties. There are two valid objections to this claim as an offset; first, there is no proof of payment by one of the sureties; and secondly, there is no proof that an effort has been made to obtain payment from the principal, or that he is insolvent. In such cases the principal is first liable; the liability to make contribution is secondary. McCormack v. Obannon, 3 Munford, 484. Nor is there any proof of the insolvency of the sureties who are alleged to be so.
The next offset is claimed by Robards, as the assignee or holder of a note made by Connelly, Stone and Williamson for $6842-72, payable to to G. W. Denton. This note it seems was the property of Jacob Wilcox, between whom and Connelly an agreement was made for its payment, in this way: Connelly held the note of Robards for $3000, which he transferred to Wilcox as collateral security, who agreed if the note for $3000 whs paid at maturity, the other was to, be delivered up to Con-nelly as fully paid. It seems that in June, 1843, J. M. Bell handed to Wilcox his acceptance on Robards’s draft for $1000, and also agreed to hand over to Wilcox, Robards’s note, then in his possession, for $2260, which was to be in payment of the $3000, and Bell also received of Wilcox both notes. In Bell’s receipt it is stated that Wilcox also transferred Connelly’s note to Robards, in case the agreement should be ratified by him. Robards received both notes from Bell, and now claims to have
The degree must be affirmed.