23 Ark. 147 | Ark. | 1861
delivered the opinion of the Court.
Francis W. Boyd sold to Walker his farm, in Hempstead county, with the farming utensils, stock, and twenty-one slaves, for which Walker was to pay fifteen thousand dollars, in five annual installments, the last of which became due the 7th of April, 1848, and was witnessed by a bond for the payment of three thousand dollars, with six per cent, interest from its date, the 7th of April, 1843. Boyd gave a bond for title to the lands, by which he was to make “ a full and warrantee deed in fee simple” to the lands “ on the completion of the payment” of the fifteen thousand dollars. To secure the payment of the same, Walker also mortgaged to Boyd the slaves he bought from him. All the bonds — -each one representing an annual installment of three thousand dollars — but the last, were paid, and upon that two thousand dollars were paid on the 20th of June, 1850. But the residue of it remaining unpaid, on the 20th of April, 1859, the appellee, as the executor of the will of Boyd, began this suit, which is a bill to enforce the mortgage upon the slaves to the extent of the sum due. The will of Boyd was set forth by copy with the bill, by which the appellee claimed that he had authority to make such deed as Boyd, in his bond for title. agreed to make, and with the bill as amended, the appellee tendered a deed.
The only defense made to the bill is that Boyd had no legal title to three hundred and sixty acres of,the land sold to Walker; and that in his lifetime it was notin his power to perform the covenant contained in his title bond, and that the appellee cannot do so, the inability still existing.
Waiving all questions upon the defense being made in the answer to the bill, and upon the effect of the replication to the answer, and considering the subject as if presented by a bill to restrain the collection of the purchase money, as was the case in Worthington vs. Curd, 22 Ark., or as in Bolton vs. Branch, 22 Ark., which was a case in which a bond for title had been given, and the vendor filed a bill to subject the land to the payment of the purchase money, and the vendee, bj' cross-bill, asked for an injunction against various proceedings of the vendor intended to pursue his legal and equitable remedies, it may be repeated, as was ruled in those cases, that if a vendee resist the payment of the purchase money upon defects of title in the vendor, he must, by allegation and proof, make and sustain specific charges, showing where the deficiency is, and upon what it rests; who makes claim of title to the land sold, and that the claim is good. In this case-there is no allegation of any claim, no reason is given for the general charge contained in the answer that Boyd had no title, and could make no good conveyance to Walker of a part of the lands included in the sale. And there is no proof on the part of Walker to sustain his answer. The evidence of the appellee is not of the highest grade; it is that Hopson owned the land in 1833 or 1834, or some part of it, on which the substantial improvements of the place now are; that Abram Stewart and Andrew Caldwell each owned some of the lands making up.the Boyd place; but in general terms it is stated that Hopson owned the place, and sold it to Scroggins, he to Boyd; that Boyd transferred it to Pearsall and Trotter, and took it back from them, and then sold it to Walker in 1843. The general course of transfer of lands and of business in their sale, is to give written assurance, or conveyance thereof, and when in the circuit court such evidence as we Lave detailed has been given to show title, no objection to its admissibility or effect can be entertained in this court Two hundred and forty acres of the land, whose title in Boyd is impeached, were confirmed to Stewart in 1828,under a Spanish grant; eighty acres were entered by Andrew Caldwell in 1833 and in 1835, and as to these lands there is no room for inference that their heirs or representatives, other than Boyd, can make any claim to the lands. Twenty-five years adverse possession, without any showing that Stewart left any minor children, and with proof that the youngest of Caldwell’s children was thirty years old, are enough from which to infer a good title, though it rested only on possession. Hopson entered forty acres of the land in 1833, and out of the twelve or thirteen children he left behind, about half of them were minors in 1859. That forty acres might be considered as Boyd’s under the slight evidence given of the title passing from Hopson by the sale, if such conclusion were necessary, but it is not, as the burden of proof was upon Walker to show that the land belonged to Hopson’s heirs, and to do it upon proper allegation. Upon this subject we refer to Bolton vs. Branch, before mentioned, and to the authorities therein cited; and to the cases of Coleman vs. Rowe, 5 How. (Miss.) 469; and Abbott vs. Allen, 2 Johns. Ch. 525.
There is nothing here to induce us to believe that the alleged defects of title were not known to Walker when he took the title bond, as well as when he .set up his defence in his answer. This wmuld bring the case within the principle of Worthington vs. Curd, 22 Ark., where the authorities are cited upon this point. This principle is applied in Greer vs. Finucare, 5 How. (Miss.) 546, to a vendee holding under a bond for title.
It will be seen that we do not treat this case as one of specific performance, as put for Walker; nor do we find it necessary to^decjde, the points raised by the appellee, that the con- ' veyance and payment of the purchase money were not mutual acts and dependant upon one another, by reason of the words of the title bond, or of the payments being made in installments. We have examined the authorities upon the latter point, but reserve a decision thereon until it shall become necessary.
The decree of the circuit court, sitting in chancery, sustaining the bill is affirmed.
