Jones v. Stanton

1. The collection of the purchase money of a tract of land will be restrained if it appear that there is a defect in the title, until the purchaser is indemnified against loss, it appearing that the solvency of the vendor is doubtful. C"i'~ -V 6 i •2. One of two tenants in common cannot by purchase of an outstanding title, or of affincum. branee, acquire title to the whole against his co-tenant — such purchase will operate to the benefit of both — and he is entitled to claim contribution of his co-tenant.

APPEAL from St. Louis Court of Common Pleas, in Chancery. 1st. The agreement set up in the bill varies essentially from that given in evidence. The words “grant, bargain and sell,” under the statute of Illinois, do not amount to & general covenant of seizen of an indefeasible estate of inheritance in fee simple, absolute, but only a covenant against the personal acts of the grantor, and for quiet enjoyment. See decisions under a similar-statute, 2 Binney 95; 2 Alabama, new series, 535; 3 Smedes & Marshall, 618. The rule in chancery is the same as at law in relation-to a variance betvr een the pleadings and proofs. 5 Wend. 652; McNair et al, vs. Biddle, et al, 8 Mo. Rep. 267. And where the plaintiff fail to make out the agreement charged, he cannot resort to that confessed in the answer. 2 Vesey sr. 299; 5 Vesey jr. 452; 5 Wend. 650. 2nd. But upon the supposition that the express covenant of warranty forms a part of the plaintiff’s case, he is entitled to no relief, as there has been no breach of covenant — he is still in the undisturbed possession of the property, nor is suit even threatened or apprehended. Admr. of Barton vs. Rector, et al, 7 Mo. Rep. 528, and cases cited; 5 Howard, 470, and cases cited; 1 Smedes & Marshall, 618. Is he then entitled to any relief over and beyond his covenants? 3rd. It is true that cases may exist in which a purchaser by executed contract, may be allowed an injunction, without showing any fraud or eviction, such as the unexpected insolvency or removal of the vender, under peculiar circumstances. Here the injunction will be continued until the purchaser can have the question of doubtful title settled. But the danger must be really apprehended, and must have been mfarseen and unexpected, at the time of the conveyance. 2 Dana 278; 6 Monroe 225; 7 lb. 198-202 4th. The proofs, so far from establishing the charge of the defendant’s insolvency, show that he is abundantly able to meet the amount enjoined, which is about $4C0. The court does not, in its decree, pretend to find him insolvent; but only says that matter is doubtful. 6 Mo. Rep. 360; 1 Smedes & Marshall, 638. 5th. The title was not passed upon in such a manner as can commend itself to this court. The defendant claimed that his title was perfect. It was for the plaintiff to show it clearly had. 5 Munford 295. If danger he apprehended, the vendee must bring the parties in to assert or relinquish their rights. 1 Dana 308-328. 6th. The finding of the court upon the subject of the comparative value, was without evidence. The answer denied the plaintiff’s allegation, and put the plaintiff to proof. The allegation in the answer, that, the land was chiefly valuable for its excellent timber, but that the plaintiff had cut and destroyed it, was responsive to the bill. The true test is, whether the question answered would be proper in a trial at law, whether it would be relevai t to [the is3«e, such as (he witness would bo bound to answer, and the answer be competent testimony. 1 Hoffman’s C. R. 185; 11 Wend. 343. It was incumbent upon the plaintiff to prove on the hearing, all 3uch facts as were not expressly admitted in the answer. 2 Tuck. Com. 483; 3 Paige 545, and cases cited. 1st. Jones in his answer does not deny, and therefore admits, that his covenants to Stanton are such as are set forth in the bill. 2nd. If, however, under the pleadings, the question can be raised on behalf of Jones, whether he made to Stanton such a covenant of seizen as set forth in the bill, and the place of argument thereof be changed from the pleadings to the evidence produced on the hearing, still it is insisted that the deed of Jones to Stanton, contains the covenant of seizen of an indefeasible estate in fee-simple. For it contains the words “grant, bargain and sell,” and was executed in the State of Illinois, where the land i.-, and by the stituto of said State given in evidence, said words in a deed of conveyance of real estate in that State, are declared to be, to the grantee, among other covenants, a covenant of seizen, &c. Such is the plain meaning of the express language of said statute. And in construing statutes, their express words cannot be nullified, if sensible. Such also is the meaning, as always understood by the people generally, and by lawyers. Upon such a meaning, conveyancing in said State, and in this State, (under a like statute,) has been founded and practised, to the general abandonment of deeds with full covenants, for so long a time, that the most of the present owners of real estate, must own by such a deed as this, so that the establishment of a contrary doctrine would unsettle, and essentially weaken, almost all the real estate securities in the land. Jones had no doubt of his having made such a covenant, nor his Illinois solicitor who drew his answer — nor drew it in question by a plea — but undertakes to show that the covenant is not broken — he confesses it and tries to avoid it. Such also was the prevailing opinion in Pennsylvania under a like statute, as may be seen by reference to the opinion of the Supreme Court of State, in the case of Bender vs. Fromberger, 4 Dallas, 436. 3rd. If however, the words “grant,” &c., be construed to bind the grantor only as against his own acts, still since Jones sold representing that he had a perfect title, admitted in his answer, and in his answer insists upon it, and shows how he got it, and by that very showing, shows that his title is bad by his own fraudulent acts, he should now be estopped from saying that he had not a perfect title, and Ihen he should be bound by his own showing of that title, which showing proves it bad by his own fraud and act. 4th. Jones did not acquire the title of his co-tenants by the purchase at the tax sale. The attempt was dishonest — violative of the obligations between co-tenants, and a fraud in fact, and enures to the benefit of his co-tenants. 5th John’s Ch’y. Rep. p. 388 & 407-408; 4 Litt. 187; 2 vol. Pirtle’s Dig. p. 8, n. 23. 3 Greenleaf’s Rep. 207, decides, that when a tenant in common gets a title to the land (held in common,) derived from a sale thereof for taxes, by the sheriffj such title enures to the benefit of his co-tenant, so that he can maintain a writ of entry against his co-tenant, claiming to hold the entire land under such a title, for his part thereof — the tax is the debt of both, and he who pays has his action for contribution. The lands of partners are held by them as tenants in common. 15 J. R. p. 159; 11 Mas. 470. Now in 4 Lit. Rep. 187, it is decided, that if partnership land is sold under an execution against the partners, and one of them purchase it, it does not extinguish the title of the other. Then in the language of the court in said case, “mutatis, mutandis,” we would say, “how Jones under a tax sale against himself and his co-tenants, could become the purchaser of a title in himself, so as to extinguish the title of his co-tenant, is what we do not understand. 'His purchase then is no more than a bare payment, the singular and solemn formality of the tax sale notwithstanding.” „ 5th. The decree is right, for either insolvency or non-residence of the grantor justifies the interference of a court of equity to prevent his collecting the price agreed, when it appears that his title is bad, if he has covenanted that it is good. 8 Mo. Rep. 622. The evidence .shows that Jone3 is probably insolvent — certainly anon-resident — soothe court below found. Jones, who best knows, dont venture to answer that he is solvent, but refers to a reputation about his means to satisfy Stanton for any liability, at the same time denying all liability. This makes this reputation say, that Jones has got enough -to satisfy nothing. His witnesses, especially his lawyer, do not prove his solvency in a way to entitle them to any credit, for they swear to what, from the nature of the thing, they cannot positively know. On the other hand, Stanton’s witnesses, interested to know, because creditors, very plainly prove the insolvency. 6th. Jones practised a fraud in fact upon Stanton. For a person, who in selling, represents his title perfect, which is imperfect by reason of his own deliberate fraud, most clearly perpetrates a fraud upon his vendee. Is not a thief, who in selling his stolen goods, represents his title perfect, guilty of deceit and fraud against his vendee? 7th. An action may be brought when the title to only a part fails. 5 J. R. 49. And the covenant of seizen is broken when a tenant in common c'ovenants sole seizen. 7 J. R. 376.