Truesdell v. Callaway

6 Mo. 605 | Mo. | 1840

Opinion of the Court by

Tompkins Judge.

Judge McGirk absent during the remainder of the present term.

Larkin S. Callaway and Daniel B. Callaway preferred their bill of complaint in the circuit court of Franklin county against William Truesdell, the appellant, and one Jesse Pritchett. The cause was transferred to the circuit court of Gasconade county, where a decree being made against Pritchett, for want of an answer, and against Truesdell, on a hearing, he appeals to this court.

The complainants in their bill state that they are the purchasers of a tract of land lying in said county of Franklin. That said tract of land was originally the property of one John Caldwell, who sold it, along with other land thereto adjoining, to said Pritchett, who sold the same to the defendant, Truesdell, to one William G. Owens, and to one Joseph McCoy, in separate parcels, giving to each a bond for a title to his respective part, whenever said Caldwell should make to said Pritchett a title to said tract of land; that the complainants purchased the interest of said McCoy; that Pritch-ett, when he sold the land, as aforesaid, to said Truesdell, Owens, and McCoy, put each 6f them into the possession of his respective parcel of land; that Pritchett had paid Caldwell for said land; and that Truesdell, Owens, and McCoy, had each paid Pritchet for the portion which each had respectively purchased from him, and each was entitled to a deed, for his land, that is to say, Pritchett to a deed from Caldwell, and Truesdell, Owens and McCoy, from Pritchett. That when said Truesdell and Owens applied to Pritchett to make them a deed, by agreement among themselves, Pritch-ett surrendered to Caldwell his bond for the title to said land, and Caldwell, in consideration thereof, did convey the said land to Truesdell, and that Truesdell in consideration thereof undertook to convey to Owens and McCoy, respectively, their several portions of said tract of land, according to the effect of the bonds executed to them respectively, by Pritchett; that in some short time thereafter Truesdell informed McCoy of this arrangement, and requested him to pass the title bond made to him by Pritchett over to William . G. Owens, in order to have a deed drawn agreeably to the • terms of -the bond, and that he Truesdell would execute it; that McCoy accordingly did deliver the title bond to said Owens, who wrote the deed-and delivered it to McCoy, but retained the bond; and that McCoy presented the deed to Truesdell for execution, and he refused to do it, but said he would execute any deed which would bind said McCoy and his heirs to keep open a way, sixty feet wide, through said land, on the bank of the Missouri river; that McCoy told Truesdell that his bond called for the Missouri river as a boundary, and that if he did not execute the deed as drawn up by Owens, he would resort to Pritchett on his bond; that Truesdell then told McCoy he had no bond, alluding to the fraudulent collusion betwixt Tiuesdell and Owens, by which said bond was retained in the possession of Owens, and McCoy kept out of his title. The bill further charges Trues-dell with the act of procuring the deed for this land to be made by Caldwell to himself with intent to defraud McCoy; and further states, that neither McCoy nor the complainants have ever been able to recover the bond from Owens, and that they believe it is withheld by the contrivance of Trues-dell; that said Owens is dead, and McCoy gone to parts unknown to the complainants; that they are unable to give the dates of the several transactions above stated, all of which are stated to be within the knowledge of Truesdell, and to have transpired within a few years. The boundaries of the land are there set out in the bill conformably, as is said, to the provisions in Pritchett’s bond to McCoy. The bill prays a decree for a conveyance of the premises, and that Truesdell may be restrained from proceeding in ejectment against the complainants.

To this bill Truesdell pleads the statute of frauds; and answering says, that he did purchase of Pritchett a tract of land on the Missouri river, in Franklin county aforesaid, in the year 1832, the legal title of which he understood when he purchased to be in one John Caldwell; that Pritchett at the time made him his bond for a title, to be made so soon as he could get a title made to him by Caldwell; that the said bond was some years ago delivered up to said Pritchett, and he cannot be positive as to the wording thereof, but believes the above to be substantially correct; that some short time after said purchase he paid Pritchett the- purchase money, and demanded a deed for the land. Pritchett answered that the legal title to the land was in Caldwell, who was bound to make him a deed. Pritchett then assigned to him his bond on said Coluwell for a tract of land including that purchased by him, Truesdell, from said Pritchett; that he understood at the time of the assignment of the said bond, and sometime before that one Wm. G. Owens and Joseph McCoy, had purchased or contracted to purchase from said Pritchett, the residue of the tract of land mentioned in said bond, which said Pritchett, held on said Caldwell, after deducting the quantity purchased by him Truesdell, from Pritchett as aforesaid; that Caldwell did convey said land to him, and that he did say in the presence of Caldwell that he would convey to the said Owens and McCoy whatever portions of said land they were entitled to. The land conveyed is there set out by metes and bounds. The deed was made by Caldwell on the 25th day of February, 1833. He then states that shortly afterwards said Owens presented to him a deed be executed by him; that he refused to execute the deed presented by Owens, unless there should be inserted in said deed a covenant to keep open a way sixty feet wide along the Missouri river; and that he mentioned to said Owens, that the understanding between himself and said Owens and McCoy was that there was always to be an open way, sixty feet wide, on the Missouri river, on the land conveyed by said Caldwell to the said Truesdell as aforesaid. That said Owens then said such was the understanding, and that he would draw another deed and insert a covenant to keep open a way sixty feet wide on his portion the land; that said Owens accordingly drew up another deed, inserting such covenant, which said deed said Truesdell executed. This deed he states was for about three acres, and executed on the 5th August, 1833, or thereabout; that he called on Pritchett to pay him for the land he had purchased; that before he called on Pritchett as aforesaid, said McCoy called on him, and mentioned.to him that Pritchett held his note for his share of the land purchased by him from Pritch-ett, and that said note, was'due, and that said Pritchett was anxious for the payment of such nóte, and requested him to ask Pritchett to take in part payment therefor a note on one Bryant for the sum of one hundred doilars; he then called on said Pritchett, and having settled his own business made Pritchett the offer of Bryant’s note as McCoy had requested; that Pritchett refused to take it, and said if McCoy could not pay him he would take the land back, and that he, out of frienship for McCoy, paid Pritcnett for him the sum of one hundred and twenty-five dollars principal, and seven dollars and thirty cents interest, that being the amount of the purchase money of McCoy’s interest in the land; that he then tGok from Pritchett the note of the said McCoy for the money above mentioned, paid by him as aforesaid to said Pritch-ett, and called on the said McCo'y and gave him the said note; that said McCoy then expressed his thanks to the defendant, Truesdell, for his friendship to him in paying said note, and requested him to reimburse himself in part by collecting from Bryant the amount of the note on said Bryant, handed to the defendant by said McCoy as aforesaid; that he Truesdell shortly afterwards called on said Bryant for the payment of said note, and he not being able to pay it, Truesdell returned it to McCoy, and that McCoy told him that he would soon make collections and pay him the amount paid by him to Pritchett; that at the time of these transactions; he had the most implicit confidence in the integrity of McCoy, and made use of no precautions to guard against any breach of good faith on the part of McCoy. All these matters were transacted some time previous to the execution of the deed from said Caldwell to him, Trues-dell, and he fuither states, that he offered to execute to said McCoy a deed for his part of said tract of land, and to trust McCoy for the amount he owed him on account of money paid by him to Pritchett, as aforesaid, if McCoy could insert in the deed a covenant to keep open a way sixty feet wide on the Missouri river, through his part of the land, agreeably to the understanding between said Owens, McCoy and the defendant, Truesdell; that McCoy not acceding to this proposal, he refused to execute the deed; that then to his astonishment McCoy denied that he owed him any thing, and declared that he would get a title to the land out of him any how, thus beti’aying the confidence reposed in him for the payment-of the sum of money which Truesdell, as he alleges, had paid to Pritchett for him; that McCoy had not yet repaid him the said sum of money.

The answer further denies all fraudulent combinations for the purpose of defrauding McCoy; and alleges that in good faith he acquired the title with intention to convey to McCoy whatever interest he might be entitled to in the land conveyed to the defendant by Caldwell, and that he is still willing to do so when McCoy shall repay to him the above mentioned sum of one hundred and twenty-five dollars principal, and seven dollars thirty seven and a half cents interest, paid by him as aforesaid to Pritchett for McCoy. The answer also denies all combination with Owens, and all other persons to secrete the bond made by Pritchett to McCoy for a title to the land, or that he, Truesdell, knows any thing of said bond ■or of its contents, and asserts that the agreement betwixt McCoy, Owens, and the defendant, Truesdell, was to take deeds from the defendant for their parts of said tracts of land, with a reservation of sixty feet on the Missouri river as an .open way; and denies that he ever fold any one that 'he withheld the execution of said deed from McCoy in order to make him relinquish a part of said land on the Missouri river.

The statute of frauds is again insisted on in -the answer.

The complainants on their part gave in evidence a quit claim deed from McCoy for the premises.

John Caldwell, a witness for the complainants, testified, that he did convey a piece of land in Franklin county at a place called Washington, to William Truesdell, and that he understood from William Truesdell that Joseph McCoy had a claim on part of the land so conveyed by him., and that he was to convey the same to said McCoy agreeably to the conditional lines; that the land was so conveyed because they, Truesdell, Pritchett and McCoy, concluded that he, Caldwell, would not wish to make so many conveyances, as he understood from William Truesdell. The witness also stated that, to the .best of his recollection, he understood from Pritchett that McCoy had paid a part or .all for the land to •said Pritchett, he then stated the boundaries of McCoy’s claim about which, as there is no contention, it is useless to notice it further.

The witness being interrogated by Truesdell the defendant, stated that when Truesdell came to him for a conveyance he brought with him a bond on Pritchett, assigned to him the said Truesdall, for a tract of land which he Caldwell had sold to said Pritchett on the Missouri river, some months previous to the time he, Caldwell, deeded to Trues-dell, (the punctuation and language of the bill of exceptions are obscure.) It is probable the witness said that when Truesdell came to get a deed executed that he brought along with him the bond made by Caldwell to Pritchett for a title to sai d land, and that this bond was assigned by Pritchett to Truesdell.

The wife of the witness Caldwell also gave evidence and testified, that Truesdell admitted his obligation to convey to McCoy, whose improvements were contained within the tract conveyed by her husband. The same witness stated, that Pritchett was owing her a trifle, and said he could not pay until he could see McCoy, who he said was owing him, and that he said as soon as he could go and see McCoy he wanted to pay her, and also to purchase a black girl: that when he went and saw McCoy, he sent for her to come and get her pay, and also bought a negro.

Otis Turner, another witness on the part of the complainants, testified, that some time in the month of September or October 1833, he'was present at a settlement betwixt McCoy and Truesdell; that Truesdell had sent for McCoy to come to his house and bring with him all his papers, as he, Truesdell wished to have a final settlement with said McCoy; that McCoy came and brought his papers, and among them some notes on Truesdell, that he was present at the settlement, and .that there appeared to be a question concerning some money which McCoy had paid Truesdell, which McCoy said could go in payment for a piece of land purchased from one William Miller, which Truesdell appeared not to understand, but at last admitted and settled in that way. This witness further testified, that he did not understand that Truesdell had made any payment towards: lands for McCoy, except, what h& heard paid Miller. Bui there appeared to be seven dollai’s due Pritchett for interest,, which McCoy said he had paid, but would pay again, and did pay the same to Truesdell afterwards. This witness also stated that he heard a deed read, which Truesdell had written to assign, (sign) for McCoy, that McCoy refused to' take it because it did not call for the waters edge, which McCoy said was his contract. That McCoy said he was willing to enter into a bond to leave a way sixty feet wide on the river, or more, if Truesdell and Owens would do the same, but that he wished the deed to call for the waters edge agreeably to contract: that at the time Truesdell offered to make McCoy this deed, he did not demand of McCoy any money as payment for this land. This witness also testified as to the boundary of McCoy’s claim. At this settlement the witness states that Truesdell gave McCoy his note for about nineteen dollars, errors, and omissions excepted, at this settlement it was agreed that Truesdell should keep, for the interest due Pritchett, a gun of McCoy’s which he had; this interest was about seven dollars, they could not ascertain exactly how mnch it was: that he heard no mention of land matters being due either way.

The same witness, on cross examination, stated, that he did not recollect of a receipt being brought forward on the day of the settlement, given Truesdell by Pritchett, for money paid him by Truesdell, amounting to §125,00 principal, and thirty-seven and a half cents interest, which should have leen paid Pritchett for McCoy by the said Truesdell, and that Truesdell lifted papers from McCoy, but does not recollect of McCoy lifting any from Truesdell at the above mentioned settlement.

Joseph McCoy testified that on or about the 1st of Febru-arp, 1832, he purchased from Jesse Pritchett a tract of land lying on the Missouri river, containing about thirty-six acres; that he took Pritchett’s bond for a title to the same, and gave Pritchett his obligation for the páyment of the price.— Shortly afterwards, the witness states, that he paid Pritchett for this land, and took in his bond. About the same time that the witness purchased he states that Truesdell also purchased from Pritchett about one hundred and eighty acres, a part of the same tract, and he also took Pritchett’s bond for a title, as also did William G. Owens. It was called the Caldwell tract, because one Caldwell was the original own-' er and had sold to Pritchett. Caldwell had not yet made Pritchett a title to this land, when the witness, the said Truesdell and Owens, purchased: he further states that some short time after he had paid Pritchett for this land, Trues-dell come to his house and told him that Caldwell had by consent of Pritchett and Owens conveyed to him the tract of land which Pritchett had bought of Caldwell, and also in parcels to the witness Owens and Truesdell, and that he Truesdell had undertaken to convey to the witness his part, and told him if he would give Pritchett’s title bond to Owens to write a deed by, he would execute such deed at any time; that the witness delivered Pritchett’s bond to Owens, and that Owens wrote the deed, which the witness presented to Truesdell who refused to execute it; Owens retained the title bond; Truesdell refused to execute the deed unless the witness would convey sixty feet in breadth on the river, through his tract of land lying on the river for the benefit of him Truesdell and Owens, for a landing'and public highway. This the witness refused to do, but offered to leave a road if Truesdell and Owens would do the same. Truesdell did not agree to this proposal. The witness stated that he held Pritchett’s bond for a deed, and would look to him for a title; that Truesdell then told the witness he liad no bond, and that if he did not convey this sixty feet for the benefit of him and Owens he would never make a deed to the witness; that he then demanded his bond from Owens, who told him he had delivered it to Pritchett, and when he demanded it from Pritchett he told him he had burnt it. The witness then describes the land, and states his sale to the two Callaways. He denies that he ever did owe Truesdell any thing, and declares that at the very time that Truesdell refused to make the deed, he and Truesdell had a final settlement, and that Truesdell lifted his notes with the exception of $19,75 for which he gave his note to the witness. This settlement, he states, was made by O. Turner of Franklin county. After the settlement was made, Truesdell said he had paid seven dollar's and some cents interest for the witness, and the witness recollecting that he had sold Truesdell a gun for eight dollars, this sum was by consent set off against the other; the witness denies that after the above mentioned settlement he has ever had any dealings with Truesdell.

It was agreed between the parties that the following facts should be evidence in the cause, viz: that a settlement of accounts between the parties took place on the 20th July 1833, and that Truesdell executed his note to McCoy for about $19, this is the same settlement mentioned in Turner’s deposition, that this note was afterwards sued on, and that Truesdell gave in evidence several items as an off set and had judgment for eight dollars.

The defendant Truesdell then gave in evidence on his part a paper purporting to be a receipt from Jesse Pritchett to said Truesdell for $125 principal, and $7,31 cents interest, dated 5th August 1832, which sum was received on a note held by me on Joseph McCoy, the said note having been given me for' land sold to said McCoy on the river, in Franklin county, which land adjoins the land of the above named William Truesdell and W. G. Owens: this receipt purports to be signed by Pritchett.

Nathaniel Bell, a witness on the part of the defendant, testified that in a conversation betwixt himself and said McCoy in the subject of the sale of this property to Daniel B. and Larkin S. Callaway, he asked McCoy what he would do concerning the river part that William Truosdell claimed, and that McCoy answered that he was to give them three hundred dollars in property, viz: in hogs, cattle, corn, wheat, and household furniture, &c., to pay said Truesdell for the above mentioned land, and that they might get the title from the said Truesdell in any way they could, that he did not care if the Callaways got the title for fifty dollars.

Daniel Waldo on the part of the defendant, testified that in August or September 1832 he.saw William Truesdell pay a note which said Pritchett held on Joseph McCoy, this note was for upwards of one hundred dollars and was giv•en for a tract of land described as the land in controversy, ■that the payment was made at the house of Pritchett, that McCoy then lived in St. Louis county, and he heard Pritch-ett say that McCoy had disappointed him and he would be glad to'take the land back.

The defendant having produced seven witnesses to prove that McCoy was not to be believed on his oath, closed his case.

On this testimony the circuit court found that McCoy ‘had repaid to Truesdell the .money which he had paid to ‘Pritchett for him, and decreed that Truesdell be enjoined from proceeding in his action of ejectment against the complainants, and also decreed that he should convey to them that part of the land conveyed to him by Caldwell, which Pritchett had by his bond covenanted to convey to McCoy.

These were the points substantially made by the defendants counsel.

1st. That the purchase money not having been paid by McCoy to Pritchett, either on the day it became due or at any other time, Pritchett might lawfully sell the land to another, and the purchaser would hold it divested of any equity which McGoy, or his assignee’s might have against Pritchett.

2nd. That the statute of frauds is a complete bar to the prayer of the bill for a specific performance, there being no contract other than verbal betwixt Truesdell and McCoy or his assignees, the complainants in this bill

The evidence on the part of the appellant, Truesdell, that he paid the consideration for this land in controversy is the receipt of Pritchett for the money, and the testimony of Waldo that he saw Truesdell in August 1832, pay to Pritch-ett, at the house of Pritchett, this note of McCoy made by him to Pritchett. This is of so equivocal a character, that it scarcely deserves consideration. In the first place there is not the slightest evidence that McCoy ever requested him to pay it, or that he even ever promised after the pretended payment to repay Truesdell this money, which, ifit ever were paid by him to Pritchett, he could not recover even in an action of assumpsit, without such promise. It is well settled law-' that one man cannot make another his debtor, by paying, money for him, without being requested to do it. For, say all the books, if this were permitted, and A owed a sum of money to a friend, and an enemy chose to pay that debt the latter, (the enemy,) might convert himself into A’s creditor, nolens volens, see Selwin’s nisi prius, title, assumpsit; and the authorities there cited.

A person cannot acquire a lien upon laud purchased by another, by the voluntary- and unauthorized payment of the purchase money, as one man cannot make another I1Í3 debtor by paying money for him, without being requested so to do by the latter.

Rut the acts proved to have been done, are such very slight evidence of payment, that they scarcely deserve consideration. ■ It certainly was no yery difficult matter for Pritchett to write Truesdell a receipt for the money McCoy owed him, and as little trouble for Truesdell to count out to Pritchett in Waldo’s presence the amount of the principal and interest due on McCoy’s note. There is not the slightest evidence that this receipt ever came to the hands of McCoy. And the only evidence that the note ever came-into his hands is the declaration of Truesdell himself, which-it cannot surely be pretended ought to be listened to in a court house,.not being given in answer to any matter stated in the bill. It is quite incredible that any man who is suffered to be his own guardian would be so silly, had he paid this money as Truesdell pretends to have done, as to content himself with such equivocal evidence of the fact, as a receipt of Pritchett. It makes the matter appear worse, too, that Pritchett, the only person capable of explaining these equivocal acts, was made a party to this bill, and has not answered, and denied the payment by McCoy. But John Caldwell states in his deposition,that to the best of his recollection, Pritchett told him that McCoy had paid “ a part or all' for ike land to said Pritchett.” Polly Caldwell, the wife of John Caldwell, ’vendor of this land,, also states circumstances strong!)? conducing to prove the payment to Pritch-ett by McCoy of all his demand. She said that Pritchett owed her a trifle and could not pay her till he saw McCoy,, and that he said as soon as he could go and see McCoy he-wanted to pay her and to buy a black girl; and when he went and saw McCoy he sent for her, and paid her, and bought a negro. But if it were established as a certainty that this-money had been paid by Truesdell to Pritchett, still the evidence of Turner is sufficient to raise the presumption that it had been repaid to Truesdell before the institution of this suit, or before that settlement. Turner states that the setment took place in October 1833. It is admitted on record ■that this settlement took place in July 1833, and that Trues-■dell then executed his note to McCoy for $19 00. This settlement, Turner States, was denied by Truesdell to be final; that McCoy produced several of Truesdell’s notes, which he Truesdell lifted, as the witnesses expresses it. In several places I have copied the testimony ■ as I found it, not being very certain whether I could render the meaning in more intelligible language, or whether even I understood it. But Turner says that on that day, though he appears to have acted as accountant, he did not learn that Truesdell made any payment towards lands for McCoy, except what he heard paid to Miller; and this was the day on which Trues-■dell tendered the deed too.

But on the cross examination by Truesdell, Turner tells “ that he does not recollect of a receipt being brought forward on the day of the settlement, given Truesdell by “ Pritchett for money paid him by Truesdell, amounting to “ one hundred and twenty-five dollars principal, and seven “ dollars and thirty-seven and a half cents interest, which 4i should have been paid Pritchett for McCoy by the said ■“ Truesdell.” This is a literal copy, made so lest injustice should be done the defendant. This receipt must be that spread upon the record by the defendant, appellant here, as evidence that he had paid this money to Pritchett for McCoy. It can hardly be conceived to be possible that he who had called on McCoy fora final settlement on that day when the title to the land was to have been made, and whenMcCoy refused the deed, could have forgotten so large an item in his account. He might by possibility have been simple enough to have given, as he pretends in his answer, the note over to McCoy, and to have reserved this receipt as evidence of what he pretends to have paid for McCoy. But on such an occasion, when he fell in debt too to McCoy, this receipt could not have been forgotten. The conclusion then^ to which I am irresistibly draryn is this—that if he then had that receipt, he was ashamed to produce such evidence; and that it would not have been produced here but for the hope that in tire mass of rubbish with which this record is loaded, it would pass without scrutiny. But the dates sufficiently show that he had no such receipt at the time, frivolous and cheap as the evidence is. By the agreed evidence spread on the record the parties have fixed the date of this settlement to the 20th July 1833, and Turner too in the latter part of his deposition fixes the date to the same point of time; and Waldo, who testified to the gratuitous payment of McCoy’s note, states that it was in the month of August or September that he saw the alleged payment made. The receipt then was an afterthought. Indeed the pretended receipt is dated on the 5th day of August. With this testimony before it, the circuit court, as it appears to me, must have been very charitable to Truesdell to find only that McCoy had repaid him what he had paid to Pritchett for him. The testimony was in my opinion amply sufficient to justify that court in finding that Truesdell did not pay any thing to Pritchett for McCoy. In his answer, too, Truesdell fixes the date of this payment pretended to be made to Pritchett on the 5th day August, when sixteen days before he had made a deed to Owens under this conveyance from Caldwell, and had tendered one to McCoy on condition of McCoy’s leaving in him the title to sixty feet of ground on the river. No difficulties were then raised either by him or Pritchett, because McCoy had not paid, nor had Truesdell yet extended his friendship to McCoy. Pritchett might well be ashamed to answer such a bill if he had executed the receipt purporting to be made by him. But admit that Truesdell paid this money as he states, out' of friendship, and that McCoy after-wards recognized the act. as his own, and promised to pay (of which there is no evidence, but the gratuitous declaration of Truesdell, which his counsel seem to have regarded as testimony in the cáuse,) lmgains nothing by it here. The act gives him no lien on the land; nor could he in such case make it a lien but by making out a proper case in a bill filed for such purpose.

A person who takes a conveyance of ' land with notice of the legal or equitable title of another to the aamelandwill be held a trustee for the benefit of the other, and will not bo permitted to avail himself of the statute of frauds, on the ground that the agreement under which he took the conveyance was not in writing.

He says, in the second place, that this promise to convey to McCoy was verbal, and relies on the statute of frauds. It does not appear in evidence that the bond of Pritchett to McCoy was recorded, but Truesdell had actual notice of it, and by the 31st and 32d section of the act to regulate conveyances of land, found on page 123 of the digest of 1835; that is sufficient to divest him of all pretensions to any right either in law or equity. But the justice of mankind has stamped such acts with disgrace before the statute was made See Story’s Equity Jurisprudence, vol. 1st, page 383, section 395. But without- resorting to the evidence of McCoy at all, who declares that he paid the purchase money to Pritch-ett, the testimony of John Caldwell and his wife raise very strong presumption that McCoy had paid Pritchett the purchase money. If any further evidence were required as against Truesdell, his unadvised and gratuitous declarations made in his answer, so inconsistent with the date of his receipt, would furnish that evidence. But Pritchett, it is evident admitted that he had received pay; he admitted it by his act in directing Caldwell to convey to Truesdell, that he might convey to McCoy; and Truesdell, when on 20th July 1833, he made a deed to Owens, and tendered one to McCoy, admitted that he had no authority from Pritchett to withhold the title from McCoy. His own answer, the date of his receipt, and Waldo’s testimony, all show that it was not till the 5th August that he thought of retaining the title of this land, under pretence that McCoy had not paid Pritchett. But Pritchett, by failing to answer this bill, has admitted that he has received the price of his land, and it is difficult for me to conceive how Truesdell becomes authorized to complain of McCoy’s tardiness in paying him. Pie does not pretend that he purchased the bond of Caldwell from Pritch-ett; but only that as agent for McCoy he paid Pritchett McCoy’s debt. In every view I have taken of the subject, the decree of the circuit court is in my opinion correct.

1st, If Truesdell paid the money, and it has not been repaid, he has thereby acquired no lien on the land, and has even lost his money, unless he can prove either a previous request by McCoy, or a subsequent promise to pay.

2d. If he had paid at the time he pretended before Caldwell was directed by Pretchett to convey to him for the purpose of conveying to McCoy the settlement in Turners presence shows that he was then indebt to McCoy, and consequently that the money must have been repaid as the circuit court found. If he paid the money after Caldwell conveyed to him, the act was unauthorised and unnecessary, as admitted by the acts both of Pritchett and of Truesdell himself; for on the 25th day of February 1833 he says Caldwell conveyed to him by order of Pritchett and he acknowledged his obligation to them to convey to McCoy by Pritch-etts order, and in pursuance of that admitted duty on the 20th day of July of that year he tendered a deed to McCoy? and it was not till the 5th of August then next that the pre-tence was found for retaining in himself the titlejto McCoy’s portion of the land. This in my opinion amounts to a plain proof that there was no truth in the charge that McCoy had not paid Pritchell, and if he had not paid him,' it was no part of Truesdells duty to withhold his title to the 1 and.

But some reliance it seems in the argument of the cause was had on the testimony of the witness introduced to establish an admission on the part of McCoy that Truesdell, had paid Pi’itchett for McCoys land. This testimony has been before stated in part. He says that some time in the last of April or first of May 1835 McCoy sent for him (told him,) that he had sold the land to the Callaways provided they could raise the money, that in case they could not. he promised the witness to let him have it; the price was according to him $1500. The witness then asked him what he would do about the river part that William Truesdell claimed, and McCoy informed .him that he was to give the Callaways three hundred dollars in property viz: hogs, cattle, corn, wheat, household furniture &c. &c., to pay the said William Truesdell for the above mentioned land, and that they might get the title from Truesdell in any way they could, and that he McCoy did not care if they got the title for fifty dollars, and the witness states that he afterwards saw such property of McCoy in possession of the Callaways.

In order to make out the case the counsel require us to believe that this answer was not given to this question because it seems to answer as to the whole land, whereas the question related to a part onl>y, and consequently that the proper question to which this answer was given, related to the whole tract, and that a part of the testimony was omitted in the record. Now had this been the case it is to be considered that it was his duty before the cause was argued to see that the record was complete, and if not, to apply to this court to have it made so, and not tax the credulity of the court so far as to suppose that both the counsel and clerk had neglected their duty; this duty too to see that the record is complete is the more imperative on the counsel as he claims to be benefited by the part alleged to be omitted. It is in vain to spread out fhe testimony of a cause on the bill of exceptions if we are required to suppose for, the benefit of the appellant what he has been too idle to preserve. But I consider the answer pertinent enough* It alludes expressly to the land concerning which the question was put (i e) the aforesaid land. But then it was passing strange that McCoy should be giving money to the purchasers to pay for the part claimed by Truesdell, while he was receiving money from the same persons. There is no evidence that he was to give money to the Callaways. He was to give them property and such property as might reasonably be supposed to be very useful to them, the purchasers of the land, and very troublesome to McCoy, who it abundantly appears by evidence in the record, removed to distant parts, while it equally appears that the purchasers resided, on the premises. The deposition of this witness was taken two years after this conversation, and his memory appears to be not very accurate; he states the price demanded by McCoy for the land to be three times as much as it appears by the deed of McCoy to the Callaways it was sold for. If we reduce the price which he states that McCoy said he was to give the purchasers for the river part claimed by Truesdell in the same proportion we shall have the sum of one hundred dollars, a very small sum indeed to compensate the purchaser for the trouble of prosecuting a law suit with so troublesome a man as Truesdell has shown him* self on this record to be; off the record none of them are known to me. By seven witnesses evidence is given that McCoy is not to be believed on oath. Yet hjs testimony is-coroborated by that of Caldwell and wife, as well as that of Turner. Truesdeil furnishes himself testimony enough to satisfy me, that he sets up in this case the most unfounded pretensions to hold McCoys property, still more unfounded is his pretence to the right of compelling MCoy to keep open the way on the river. Pie states and perhaps proves that Owens accepted a deed with such provision, but offers no evidence to show any obligation on the part of McCoy to do the same or any understanding between McCoy and Owens on that subject. For the reasons above given I am of opinion that the Judgment of the circuit court ought to be affirmed, and Judge Napton also believing it ought to be affirmed, it is accordingly affirmed.