3 Fla. 41 | Fla. | 1850
On the 15th day of November, 1844, John Bellamy, the intestate of complainant, filed his bill of complaint in the then Superior Court for Jefferson County, alleging the indebtedness to him of the defendant, Ransom J. Roberts, for large sums of money, on four several notes, as in his said bill is mentioned, amounting together to about $9,717 54. One of which said notes, he describes thus : “ On a note dated Aucilla, 26th March, 1840, for <f4,000, payable on the 1st of January, 1845, with interest at ten per cent, per annum from 1st of January, 1841, to the order of said Roberts, made by one W. H. Williams, as expressed in said note, for value received in land,” and endorsed on the 26th day of March, 1840, by said Roberts to said Bellamy, for value received, as expressed in said endorsement, and the payment of which Roberts guarantied to said Bellamy, and was responsible for and assigned said note as a security for cotton sold by Bellamy to him, said Roberts, and for which amount he was bound to Bellamy. The bill alleges that the defendant, Ransom J. Roberts, made a fraudulent disposition of his property on the 14th day of September, 1840, by making a fraudulent bill of sale of seventeen negroes in the bill named, to his brother, Elijah Roberts, who, on the same day, gave to David Emanuel, a brother-in-law of said Ransom, a power of attorney to take charge of said negroes, and defend them against any other claimant; and that a few days thereafter, the said Ransom J. Roberts and the said Emanuel absconded secretly from Jefferson County, and from the Territory of Florida, taking with them all said negroes and other property mentioned in the bill. And the bill charges that all these fraudulent actings and
The bill further charges that the complainant gave chase after the said Roberts and the said Emanuel, and- overtook them-in the State' of Alabama, where he caused said slaves and other property to be levied upon, arrested, attached and- seized by the proper officer, as the property of said Ransom J. Roberts, and as liable for and bound for said debts ; that a claim was interposed by said Emanuel,- for and on behalf of Elijah Roberts, which was tried and found by a jury in favor of said Bellamy; that, thereafter, on the 2d day of October, 1842, an agreement of compromise was entered into by said Bellamy, and the said Ransom J. Roberts and Elijah Roberts, (the latter acting by his agent and attorney in fact,), by which the said Roberts acquiesced in the claim, as established in favor of said Bellamy, and also agreed that judgment should be rendered in favor of said Bellamy, in the suit he had instituted against Ransom J. Roberts, without defence, for the amount of the four several notes sued on, with legal taxed costs, together with other matters therein stated as agreed to, and which may be referred to hereafter.
The bill then says, the foregoing agreement was on the same 22d of October, 1842, “ annulled and abrogated, and a conveyance of said slaves and other property was made, executed and delivered by said Ransom and said Elijah, (by his agent and attorney aforesaid,) in the words and figures following, viz :-
“ The State of Alabama, County of Covington,} Ss.
“ This indenture made this twenty-second day of October, in the year of our Lord one thousand eight hundred and forty-two, between Ran-som J. Roberts and Elijah Roberts, (said Elijah by David Emanuel,his agent and attorney in fact,), of the first part, and John Bellamy, of Jefferson County, Territory of Florida, of the second part, witnesseth : that the said Ransom-and Elijah, for and in consideration of the sum of ten thousand dollars to them in hand paid by the said John, at and before the ensealing and delivery hereof, and the receipt whereof is hereby acknowledged, and the said Ransom- and Elijah therewith-fully satisfied, content and paid, and also for and in consideration of divers other matters and things relating to the past transactions and-
“ In witness whereof, the said Ransom and Elijah have hereunto set their hands and seals, (said Elijah by said David Emanuel, his
“ RANSOM J. ROBERTS, [Seal.]
“ ELIJAH ROBERTS, by
“ DAVID EMANUEL, [Seal.]
“ His Agent and Attorney in Fact.
“ Signed, Sealed and delivered in the presence of us—
“ James D. Westcott, Jr.,
“ James P. Steedly,
“ Lemuel S. Harrell.”
“ The bill further states, that “ on the same day a final agreement of compromise in lieu of the above mentioned, was made between said Ransom and said Bellamy, which was signed and sealed by said Bellamy, and delivered by him to said Ransom, as follows, viz :
“ State of Alabama, ) gg County of Covington,)
“ This indenture made this twenty-second day of October, Anno Domini 1842, between John Bellamy of the County of Jelferson, in the Territory of Florida, of the first part, and Ransom J. Roberts, late of the same place, of the second part, witnesseth : Whereas said John, executor of Abram Bellamy, deceased, hath heretofore instituted three several suits by attachment in Dale County Circuit Court in said State, against said Ransom, et al., as by reference thereto will appear ; and whereas said attachments were levied on seventeen slaves, and a road wagon and four mules, as the property of said Ransom, and claimed by Elijah Roberts, (by his agent and attorney in fact, David Emanuel,) and by consent, the claim was tried before the County Court of said County of Covington, and a verdict this day rendered, that the property was subject to said attachment, and a compromise and agreement made in said case, signed and sealed by said Ransom, and said Elijah, (by his agent,) and by said John, as by reference thereto, bearing even date herewith, and a copy whereof is in possession of the said parties to this indenture, will appear; and, whereas, in pursuance of said agreement, said Ransom and said Elijah have this day executed a conveyance of said slaves and other property to said John, which bears even date herewith, and is recorded in the Clerk’s office of said County of Covington, and who delivered said
“ Now, in order to carry out and fulfil the residue of the conditions and terms of said compromise, with such modifications as the parties thereto have since agreed upon, the said John binds himself to said' Ransom J. Roberts, to transport and convey said slaves and property forthwith back to Jefferson County, Florida, and to keep the same in-said County of Jefferson, according to the terms of said compromise,, until otherwise agreed ; and said John further binds himself to said Ransom to extend to said Ransom indulgence on said debts for five years from this date, he the said Ransom, paying the interest thereon? at eight per cent, per annum, and payable annually, on the 22d off October breach year, to said John, and said slaves and their increase in the meantime remaining in the possession of said John, and as his property, under and by virtue of said conveyance ; and said John-binds himself, on full payment and satisfaction of said judgment debt, interest and costs at any time within said five years, to sell, or assign, and reconvey to- said Ransom, or to such person as he may appoint in writing, such of said slaves and their increase as may be then living; and said John binds himself to hire out said negroes at just and reasonable prices in Jefferson County, or if he uses them himself, to allow just and reasonable prices or hire for them, and which hire is to be annually, as the same hire becomes due, to be faithfully applied and appropriated to the discharge and payment of the interest and principal and costs of said judgments; and said John further agrees to give said Ransom the privilege and preference of hiring and taking said negroes on equal, reasonable terms with others, iff said Ransom desires the same, the hire to be so appropriated and applied as aforesaid. And in order to aid in enabling said Ransom to pay. said debts, said John further agrees that he will lease or sell to
“ In witness whereof, the said John Bellamy hath hereunto set his hand and affixed his seal, the day and year first above written, at Montezuma, Alabama.
“ JOHN BELLAMY, [Seal.]
“ Signed, sealed and delivered in -the presence of us— “ James D. Westcott, Jr.,
“ James P. Steedly,
“ Lemuel S, Harrell.”
The bill further alleges, that the time of ninety days mentioned in the agreement executed by said Bellamy to said Ransom J. Roberts, in which the said Ransom was to execute a conveyance and discharge all incumbrances on the land, was agreed upon and specified as a material and essential condition of said agreement, and to be part of the essence of the contract, because it was believed said Williams would come to Tallahassee about the first of January, 1843, as a member of the Legislative Council, and remain in said Middle District that month, and afford thereby an opportunity to said Bellamy, if the same was done in ninety days, of applying to Williams respecting the business, and inducing him to accept such conveyance and take the lands, and if he refused, of instituting proceedings in equity against him in said District to compel him to do so, and enforce the payment of said note by him, or effect a compromise with him.
The bill further charges, that Bellamy requested said Ransom J. Roberts, after discharging all the incumbrances aforesaid, within the ninety days aforesaid, to make a title to said Williams and deliver it to said Bellamy or his counsel at Tallahassee, to tender it to Williams, and if he would accept it, to deliver the same to him, and thereby make him liable and bound for said note, but that the said
The bill further charges, that Williams disputes and contests his liability on said note, especially since the conveyance to Woods, thereby destroying the ability of said Roberts to make him a title, and causing a failure of the consideration of said note ; and the bill contends that both Williams and Roberts are bound and liable to said Bellamy to pay the amount of said note, principal and interest, when due; and notwithstanding said fraudulent conveyance by said Roberts to said Woods, the said Bellamy has a lien, and charge and equitable mortgage upon said lands, prior and superior to, and above and before said fraudulent conveyance. And the bill charges, that said land should be sold to satisfy said note and interest and costs and expenses, and if insufficient, that Williams and Roberts should both be held and bound to Bellamy for the deficiency.
John Bellamy, the complainant, died, and William Bailey, Adm’r de bonis non of said Bellamy, deceased, filed his bill of revivor praying to be admitted as complainant, and was made a complainant as the legal representative of said John Bellamy, deceased. And none of the defendants having appeared or answered said bill except William J. Woods, an order for publication was obtained against them,
The defendant further states that he had heard from rumor only, that there had been an old contract in regard to the purchase of said lands by Wm. H. Williams, from said Roberts, but upon inquiry, he was informed and believed, and so charges, that at the time of his said purchase, it was null and void to all intents and purposes. That it was a notorious fact that Roberts had tendered Williams a deed, which Williams refused to accept, and Williams being insolvent, Roberts elected, to abandon the contract with Williams, and did abandon it.
And further answering, this defendant saith, he had also heard from rumor only, before he purchased from Roberts, of the contract -or agreement in complainant’s bill mentioned, between said Roberts and complainant in regard to said land, but at the same time he was informed and believed, and so charges, that said agreement was also rescinded, and at the time of the purchase of said land by this defendant, was null and void. That said Roberts had done everything necessary on his part to be done, to complete said contract, and had at great costs and charges, sacrifice and trouble, paid off and discharged all
And by way of plea under said statute this defendant insists that said Roberts offered to said Bellamy a deed of conveyance in fee simple, a copy of which is filed with his answer, and which deed conveyed a good and valid fee simple, unincumbered title to said' Bellamy, which he refused to accept before the purchase of said lands' by this defendant.
There are many other matters contained in the original bill of complaint, not herein-set down or noticed, hut all is contained'in the
it is in proof by two witnesses in this cause, that on the 1st day of June, 1843, they tendered and read to John Bellamy, the original complainant in this suit, a deed of conveyance from Ransom J. Roberts to said Bellamy for a certain tract of land, containing 600 acres —that the said Bellamy refused to accept said deed, saying he would take the land for its worth, and that the land was not worth the money mentioned in the deed, say $4000. It is also in proof that R. J. Roberts filed with the clerk of Jefferson County Court on the 17th February, 1843, for record, a deed of release from the Union Bank to said Roberts, which deed bears date the same day it was received and filed. The cause came on afterwards to be heard, so far as the defendant William J. Woods is concerned, upon the bill, answer and exhibits, and after argument of counsel and time for consideration taken by the Court, “ it was ordered and decreed that the said complainant has a lien and charge upon said land mentioned in said bill of complaint, and that the same is in equity prior and superior to, and above and before the conveyance by said Roberts to said Woods, to the extent of the balance due to said complainant from Ransom J. Roberts, on the note given by said Williams to said Ransom, and by him transferred to complainant’s intestate, amounting, in the aggregate, with interest, to the present term, to $3,809 77-100.
“And it is further ordered and decreed, that the said conveyance from said Ransom J. Roberts to said William J. Woods for said land, dated the fifth day of November, 1844, mentioned in said bill, though valid between the parties, be, and the same is hereby set aside, as far as claim of complainant is concerned.
“ And it is further ordered and decreed, that the land described in said deed, to wit: The southwest quarter of the northeast quarter, the northwest quarter of the southwest quarter, the southwest quarter of the northwest quarter, the southwest quarter of the southwest quarter, the northwest quarter of the northeast quarter, the east half of the northeast quarter, the east half of the northwest quarter, the east half of the southwest quarter, the west half of the southeast quarter, and the east half of the southeast quarter, all in section two, of township two, range five, north and east, in the district of .land subject to
“ And it is further ordered and decreed, that defendant Woods, pay the costs of the said sale and of this decree, and the depositions and other proceedings connected therewith.
“ THOMAS BALTZELL, Judge.
“November 8th, 1849.”
From which decree the defendant, Woods, appealed to this Court. And here contends that the complainant’s intestate, John Bellamy, does not in his bill, set up any claim, right, title or interest in equity or any equitable lien to the land, which he, defendant, bought of Ransom J. Roberts, and that the decree of the Court below is erroneous. The agreement for the conveyance of land by the defendant Ransom J. Roberts to W. H. Williams, whose legal representative is also sought to be made a defendant, expresses no time at which the conveyance was to be made, and the vendee, Williams, had á right to have a title at any time on demand. As Roberts ought, therefore, to have made him the title, equity will consider it as done. 2 Story Eq. Jur., Sec. 792. The agreement for title bears date 26th March, 1840, and on that day Williams executed his note to Roberts, or order, for the sum of ,$4000, payable on the 1st January, 1846, with interest at ten per cent, per annum from the 1st January, 1841, for value received in land. As no other security but the note of Williams was taken for payment of the purchase money, according to all the authorities except in the case reported in Ambler, page 724, and a few others following its lead, and which have been repeatedly overruled, the vendor’s lien attached in favor of Roberts, and that lien in equity is said by Chancellor Wallworth to be admitted to exist everywhere in England and the United States, where there is a Court of Chancery to give effect to such a lien. 1 Paige Ch. R., 24.
On the day of the date of said note it was, as the bill alleges, endorsed, for value received by Roberts, the payee, to John Bellamy, the original complainant in this suit, who the bill alleges, guarantied and held himself responsible lor payment thereof to Bellamy, tho en
The bill sets up, that afterwards, Roberts, with others, fled and absconded from Florida, with all his negroes and other enumerated property; that he was pursued by Bellamy, who overtook him in the State of Alabama, and instituted legal proceedings against him, on the note assigned to him by Roberts, as well as other notes ; that proceedings were thereon had, by which he brought Roberts to a compromise on the 22d October, 1842, by which compromise Roberts agreed to confess judgment in the State of Alabama, on all the demands which Bellamy had against him, and that judgments were actually rendered in favor of said Bellamy in said State against said Roberts in three several suits — one of which was on his endorsement of the note, in this opinion referred to, and was for the sum of $4,-722 19; with interest thereon-at eight per cent, per annum from the 22d October, 1842, till paid, and costs. And that on the same day, a final agreement or compromise was made between the parties Bellamy and Roberts, by which Roberts conveyed to him seventeen negroes, &c., for and in consideration of ten thousand dollars, admitted to have been received by said Roberts from said Bellamy, which conveyance was signed by the said Roberts, and on the same day Bellamy executed to said Roberts an indenture which recognizes that the conveyance of the slaves, &c., as above, was made in consideration of the judgments so by consent to be given to said
We think the plain, unequivocal effect and result of these proceedings is, that by taking judgments on these claims in the State of Alabama, and the conveyance of the slaves, &c., thereon, in the nature of a mortgage, (the indenture of Bellamy to Roberts giving to the transaction that effect,) Bellamy thereby plainly indicated his intention to rely on that mortgage as a security for the whole of his debts, &e., and in the event that was insufficient, then to rely on the personal responsibility of Roberts for the residue. That this was intended, seems inevitable — or else why extend the time of payment on the Williams note, which would be due on the 1st of January, 1845, as in favor of Roberts’ endorsement thereon, for the term of almost three years longer ? or why consolidate the judgment obtained on Roberts’ endorsement of that note with the judgments obtained on other notes, and take a joint security by mortgage for the whole ?
Bellamy, in his bill, alleges, that time was of the essence of his contract with Roberts, in regard to this conveyance, because about the 1st of January, 1843, Williams was expected at Tallahassee to attend the Legislative Council, and he could then see him and compel him to take the land, or sue him in Middle Florida if he refused, or compromise with him. It is not alleged, that Williams did come at the expected time, or that Bellamy was injured by the delay; no damage is stated in the bill, but only it is urged that time was of the essence of the contract. In Story Eq. Jur., Sec. 776, it is laid down as true, that Courts of Equity have regard to time so far as it respects the good faith and diligence of the parties. But if circumstances of a reasonable nature have disabled the party from a strict compliance, or he comes recenti facto, to ask for a specific performance, the suit is treated with indulgence and generally with favor by the Court.
We cannot see in this, bad faith on the part of Roberts ; he did, as soon as lie reasonably could, all that was necessary, to invest Bellamy with an unincumbered, legal, valid title to these 600 acres of-land in
To return to the consideration of the security by mortgage taken by Bellamy from Roberts in the State of Alabama on the 22d of October, 1842. It seems proper to remark, that the lands are not mortgaged or named or recognized as under lien to Bellamy, nor does the transaction which there took place, in the direct conveyance by Roberts to Bellamy, or in his indenture explanatory of the transaction given to Ransom J. Roberts, state or shew, that the conveyance or mortgage was given by Roberts or received by Bellamy, as an additional or further security for the whole or any part of said judgment debts, but on their face appear to be the entire security taken to secure payment of the whole debt. Whether by the endorsement of vendor, and his guarantee of payment of Williams’ note, he gave or transferred to Bellamy the vendor’s tacit or equitable lien, comes now to be more particularly considered.
In the case of Francis vs. Hazleriggs, Executor, it was held, where the vendor gave a conveyance and took a bond for the purchase money, in which a third person joined as security, there was ho lien upon the land. Hardin’s R., 48. And in the case of Bradford, administrator, et al. vs. Marvin and Martin, 2 Flor. R., 463, this Court expressly recognize the same doctrine. Authorities to the same effect might be multiplied. Now what, let it be asked, supposing Bellamy invested with the vendor’s lien, by virtue of the endorsement of Roberts, is Roberts’ guarantee to him, but an agreement of Roberts to become security for the payment of the amount of the note by Williams to Bellamy ? Bellamy being supposed then in the position to claim the vendor’s lien, as against Williams, takes the additional security of Roberts’ responsibility — but this in equity, as we have seen, defeats the tacit lien. In the case of White vs.
If, therefore, we were to consider that, by the assignment of Williams’ note to Bellamy, he became tacitly invested with the implied lien, which Roberts, the original vendor, had upon the lands sold by him to Williams, the vendee, yet it woulcT be no stronger in his hands, than in the hands of Roberts; and we have seen that the-taking a distinct, separate security discharges the lien. And there was no express agreement originally to transfer the lien to Bellamy, nor yet any agreement when Bellamy took the separate security, that he should either have or retain any equitable lien on the lands.
Nor will the complainant’s case be better, by considering that Roberts held the legal title, to secure the payment of the purchase money; for if so, then Bellamy, as assignee, to have that lien, ought to have had the title conveyed to himself; for equity will not force it out of the vendor, (the purchase money being due,) for less than the sum it secured. But we have seen when that was offered' him, he refused it; and he shows, both by his bill and his statement at the time the deed was tendered him, that he did not consider the lands a sufficient security for the amount of Williams’ note; for he says in the bill $2,000 are as much as they are worth, and at the tender he says that they were not worth $4,000 ; and yet at that time the note, with its interest, was worth near $5,000. He, Bellamy, has shown by his bill, that he took a distinct, separate, substantive security from Roberts for the amount of the judgment which he had obtained against him in Alabama, on his, Roberts’, endorsement of said note,, for its full amount, with the interest then due ; and unless there had been (which is not alleged) a distinct agreement he should keep that note as collateral security, the property of it was-no longer in him, and Roberts, the endorser, was entitled to the possession, and it ought to have been restored to him. There is also reason to suppose that Bellamy himself either never thought of, or did not rely on the vendor’s lien, until a short period before he filed his bill in this case ; for Roberts’ agreement to convey to Williams-was never recorded until the 19th day of June, 1844, and then by the request of Bellamy’s counsel, and without proof of its execution -
The opinion of the Court is, that the demurrer of the defendant,. William J. Woods, to the bill of complaint filed in this cause, is well-
It is, therefore, considered, ordered, adjudged and decreed, that the decree of the Circuit Court, rendered on the 8th of November, 1849, and entered of record on the 23d day of November, in the year last aforesaid, be, and the same is hereby, reversed, annulled and set aside, in all things therein contained ; and it is further ordered and decreed, that the said bill, so far as the same relates to the defendant, William J. Woods, be dismissed, and that ho go thereof without delay, and that he recover his costs, &c.
Per curiam.