10 Tenn. 294 | Tenn. | 1829
Opinion of the court by
The plaintiff was the security of Sherrill in obligations to the amount of about $260. Sherrill had purchased from M’Teer, one hundred and fourteen acres oil and, hut had no bond for conveyance from M’Teer. In order to procure the plaintiff, Wright, to become security as above, Sherrill got M’Teer to give Wright a bond for title to the said land. At the time of these transactions Sherrill was indebted to the defendant James Wilson and his brother Ignatius Wilson, in about $250, and being desirous to secure the Wilsons their debt, desired Wright to surrender up the bond for the title, which he held on M’Teer. This was agreed to by Wright, believing the land was worth the debts above named, and a deed of trust was executed by M’Teer and Sherrill to secure the above debts,in which it was stipulated, that if the debts were not paid against the 1st day of January, 1822, that at the request of either Sherrill, M’Teer, the plaintiff Wright, or the Wilsons, the trustee should sell, first giving 30 days notice. Sherrill
The principal question between these parties arises upon the sale, made by the trustee Wilkinson, under the deed of trust. The defendants, the Wilsons, insist, that the sale by the trustee being duly advertised in the Knoxville Register newspaper, after the 1st day of January, 1822, and thirty days before the day of sale, and the sale having been required to be made by one of the Wilsons; all of which proceedings were according to the terms of the deed of trust, and authorized by it, and the sale being conducted in an open, fair, and leisurely manner, the biddings being kept open for two or three hours, that the chancellor was not by the principles and practice governing a court of equity, authorized to set -the sale aside'’ and order a resale, founding himself upon inadequacy of consideration alone, which although it may often prevent the interference of a court of equity in lending its aid to compel the specific performance of a contract, yet will seldom act upon that principle in the case of executed contracts, to set them aside. This is a question dependent uponauthority. Lord Chancellor Thurlow
In setting aside contracts for inadequacy of consideration, Mr. Sugdon expresses himself thus: “the truth is, that in setting aside contracts on account of an inadequate consideration, the court proceeds on fraud. In all such cases however, there must be gross inequality in the contract. (Sugden on Vendors, 193.
The second objection against the decree is irregularity, the cause being heard against the Wilsons without a pro confesso taken againstM’Teer and Sherrill. This objection cannot be entitled to greater weight, than if no steps had been taken at all to make these persons parties, and they are not necessary parties; they have no interest, having appropriated the land by the deed of trust to answer a special purpose, which they considered it equal to, and nothing more: but if they had any interest, the decree cannot bind it beyond the obligation of the trust. The fund, and the parties having the power over it being before the court, and acted upon by the decree, is all that is necessary to render the proceedings valid.
The matter of the third and fourth objections of the counsel, was before the chancellor, who has necessarily acted upon it, and we see no reason to impeach the decree on that ground. Let the decree of the chancellor be affirmed, and the costs of this appeal be paid by the defendant James Wilson.
Decree affirmed.