85 Tenn. 109 | Tenn. | 1886
The bill charges that complainant purchased from defendants a farm, consisting of five distinct, but adjoining, tracts of land; that these several tracts, by apt description, were conveyed to him by the defendants by deed containing covenants of seizin and general warranty. The bill further charges that the title has failed as to four acres and a fraction of one of the tracts, and as to sixty, acres of another; that both of these parcels, of four acres and sixty acres, belong to third persons, and at the time of the sale and conveyance to complainant were adversely holden by such third persons, under titles paramount to that of defendants. The sale is charged to have been fraudulently made by defendants, who say that they bought believing that they would get a good title to all the land included in the boundaries of their conveyance. The sale was in gross, and not by the acre.
Complainants say that they elect to keep the land to which their, title is good, and pray relief upon the covenants of seizin and warranty.
A demurrer was filed by defendants, to the effect that under the allegations of the bill, the land to which title has failed was adversely held by third persons at the time of sale and conveyance, and that under this state of facts the sale was champertous and void, and that no action can be maintained upon the covenants in the deed for loss of said land.
The Act of 1821, Chapter 66, Section 1, carried into the Code at §§ 1YY6-Y, provides that the sale
This brings us to a consideration of the question as to whether complainant can, in a court of equity, obtain any relief upon the facts stated in his bill.
The case of Dibrell v. Bradley, 3 Heis., 522, was in its facts very similar to the case under consideration. His counsel held that the bill proceeded upon the ground of fraud and misrepresentation, and title in another at time of sale, and that complainant was entitled to compensation. The case does not discuss the question, or review the authorities, and lays down no rule other than such as may be deduced from the facts
The case of Blakemore v. Kimmons, 8 Bax., 473, was a bill filed by a vendor against his vendee, for a specific performance of a contract of sale of land. The vendee was not permitted to avail himself of the defense that a part of the land he had contracted to buy was adversely holden, upon the ground:
First — That the land was sold in gross.
Second — That the land to which the title had failed was at the time in the adverse possession of another, and that this fact was well known to the vendee.
The case of Williams v. Burg, 9 Lea, 464, was a bill to recover damages for breach of covenant of warranty. The defense, among other things, ui’ged in argument, that part of the land lost was in actual adverse possession at the time the deed was executed. Judge McFarland, in answer to this, said:
“ The answer sets up no such defense, and the defendant cannot prove defense not set up in his' answer. If the question were properly presented, it would seem to be in some doubt under our authorities. The case of Williams v. Hogan, Meigs, 147, was an action upon a covenant of warranty, the declaration showing the land was adversely holden when the deed was executed. It was held that a demurrer upon this ground should be sustained; that the deed was void for all purposes,*113 and no action could be maintained upon tlie covenants.
“In the subsequent case of Ruffin v. Johnson, 5 Heis., 604, it appeared that the debtor had secured his creditors by a deed of trust upon certain lands. The bill was filed to enjoin a sale by the trustee, upon the ground that as the lands were adversely holden, the deed was void for champerty. The Court held that the complainant was estopped from setting up this defense by his bill; and in other cases it has been said that although such deeds are ineffectual to convey the title so as to enable the purchaser to recover in ejectment; yet a recovery may be had in the name of the vendor, which -will enure to the benefit of the vendee, by way of estoppel.
“However the rule may be in law, the true rule in equity should be; that if the land adversely held was really sold and taken into the account in estimating the price, the vendor ought not to be allowed to retain that part of the purchase-price. If he be not liable upon the covenants of the deed, he should be compelled to restore the purchase - money pro tanto, upon the ground that the sale was to that extent void.
“If, on the other hand, the purchaser knew at the time that the land was adversely held, and that, too, by a paramount title, and this part of the land was not- really intended to be sold, or estimated in fixing the price, then the vendor ought not, in equity, to be liable, upon his covenant or otherwise.”
The answer, which was filed upon the overruling of the demurrer, admits that the deed does include land to which the defendants did not have title, and which was adversely holden at time of sale and conveyance, but insists that the complainant was shown the true boundaries claimed by defendants, and that complainant knew that they were not buying the lost land, and that defendants did not undertake to sell other than the land which they were in possession of, and which was shown to the complainant. The proof sustains this defense. The owner of the sixty -ame piece included within the deed executed by defendants, showed the complainant before purchase where his line ran, and with him followed it for perhaps half a mile. This owner was at the
“In such a case a purchaser should never present himself in a court of equity for relief.” “No one who has the precise thing expected and intended to be purchased, can have, in a court of equity, an abatement in the price.”
The decree of the Chancellor will be affirmed, with costs of this Court, as well as the court below.