Bradford v. Harper

25 Ala. 337

• Court: Supreme Court of Alabama
• Decided: June 15, 1854
• Status: Published

Opinion

CHILTON, C. J. —

The complainants in the court below, holding a bond for title to be made when the purchase money is paid, ask that Bradford may be enjoined from proceeding at law upon his legal title, asserting that he holds the same as a trustee for them, and praying that he may be divested of the title, and that it may be conferred on them as heirs of a derivative purchaser from Neves, who bought of Killough, and who has made full payment for the land.

Bradford insists that the land has not been fully paid for ; and whether his lien exists or has been abandoned, depends upon the effect of the arrangement entered into between him and Job Taylor, to which we shall presently recur.

Something has been said as respects the protection due to the complainants as bona fide purchasers for a valuable consideration, — that they saw Neves, with a bond for title, and with his note which lie had taken up, and therefore had the right to conclude that the purchase money had been paid. The decree of the chancellor is based, in part, upon this idea. But the doctrine does not apply to such a state of facts. The fact that Neves held but a bond for title, and this title to be made on condition of full payment, must charge every one who purchases from him with notice of the lien existing for the purchase money. The possession of the note, formerly held by Killough and transferred to Bradford, would be conclusive against the lien, if it could have been obtained in no other mode than by payment; but we know that the evidences of demands are often changed and renewed, while the debt, of which they are but the evidence, still exists; and such renewals have never been held, ipso facto, to discharge the security provided by the principal debtor for the payment of the demand. If Neves had held a deed for the land, then the case would have been very different. There would, in such case, have been nothing to put the complainants on inquiry : seeing that he had a title absolute on its face, the purchaser might well have reposed upon it. But he has a bond, and the inquiry by a prudent purchaser very naturally and readily would be made, why the bond providing for payment, if payment has been made and the obligation for a title has become absolute ? Why not either a deed, or an absolute engagement to make a title ? The facts, being thus elicited, we must presume, would have been stated to the purchaser, and in this way he would have been informed that, after the note of Neves to Killough fell due, Killough’s transferree, who held both the note and the title to the land, under an agreement with Killough to make title when the note was paid, took a bill of exchange drawn by Salmon Washburn on Job Taylor, in favor of Benjamin Young, and endorsed to Bradford, for $1000, and a tract of land from Job Taylor, and delivered over Neves’ note to Taylor. The question would then come up, Was this a payment of the demand, so as to work a forfeiture of the lien ? and this is the main question for our consideration.

The bill charges that the acceptance of the bill of exchange and surrendering up Neves’ note by Bradford, was a payment of the note, and consequently a discharge of the lien. It further charges, that Neves afterwards paid Taylor the amount of the note, which entitled him to be discharged from all further liability on account of the purchase money. These charges are denied by Bradford, who insists that Neves and Taylor were partners in the purchase of the land, and that the receipt of the bill of exchange from Taylor was but the renewal of the evidence of the debt, taking cumulative security as a means of discounting the bill in bank, and thus raising money.

We think it very clear, that if Taylor was not a partner of Neves, nor acting for him in the matter of the negotiation, and took up this note as an individual transaction, and gave the bill in exchange for it, then the lien of Bradford is gone. Neves, in that event, would be no longer his debtor, but the debtor of Taylor, and upon payment to Taylor of the amount of the note, would discharge the condition of the bond as to the purchase money, and entitle himself to a conveyance. On the other hand, we think it equally clear, that if Neves and Taylor were jointly concerned in the purchase, although by a verbal arrangement between them, and Taylor, acting for both, caused this bill to be executed, and took up the old note, without any express agreement on Bradford’s part to receive it in absolute payment, and thereby to abandon the lien, he still has a right to look to the land to pay the balance due.

We must then look to the allegations and proof to solve this question. As we have said, Bradford denies the allegation that the bill was received in payment. The onus is therefore cast upon the complainants, to make proof of the fact by two witnesses, or one with strong corroborating circumstances. Let us see whether they have done this.

Alfred Johnson testifies, that he learned from conversations with Neves and Taylor that the latter liad no interest in the laud which is the subject of controversy; that Bradford told this witness, that he, or he and Killough, had sold the land to Neves for 81100 ; that he also said that Taylor drew his bill of exchange for the amount of the purchase money; that Benjamin Young and Salmon Washburn were the endorsers on the bill, and he (Bradford) accepted the same, and drew the money on it; said the bill was drawn for the purpose of taking up the old note lor the purchase money, — that he had collected of Benjamin Young §400 or §450, and the balance he himself had to pay into bank; that the reason why he took the bill, and gave up the old note, was, that he considered Taylor good; that the bill was taken in exchange for the noto on Neves. “He spoke to witness as though he did not know Taylor in the transaction up to the time of drawing the bill of exchange, and said he was satisfied that, inasmuch as Neves, note had been cancelled by the bill, he would lose the purchase money, unless he could discredit the testimony of Neves; said that he looked to the land for the purchase money.” This conversation, the witness states, was in 1848 or 1849, or after the commencement of this suit; witness does not give the language, but the substance as near as he remembers, of what Bradford said, and says no one was present at their conversation.

With-respect to the testimony of this witness, it will be observed that it consists of the statements of Bradford to him; and allowing him full credit for honesty and fairness, it is manifest that much of what is said as coming from Bradford is incorrect. It is said, for example, that Taylor drew the bill, that Bradford accepted or endorsed it, and that Wash-burn and Young endorsed it; that it was for the amount of the note of Neves, and that he had collected of Young $400 or $450. Now, none of this conforms to the facts ; and whether it results from the failure of the witness correctly to apprehend the conversation, or from want of a proper recollection of the facts detailed, or from a misstatement of them by Bradford, without any conceivable motive for so doing, is not material. By recurring to the record of the suit on the bill, we find the facts above deposed to to be otherwise than here detailed; and this want of correctness shows, that this must have been a loose conversation, not had with any view of making testimony out of it, perhaps had without much regard to accuracy, and, it may be, has been badly remembered, and incorrectly stated. Such conversations are but little to be relied upon as safe guides to truth, and such evidence is always received with caution. That portion of the proof made by this witness, which is most material to the case, seems to be stated rather as a conclusion than as a fact. He says, Bradford spoke as though he did not know Taylor in the transaction up to the time of filing the bill. It would have been more satisfactory, if what he said upon the subject had been stated, so that the court, instead of the witness, might have judged of the effect of the conversation.

Solomon Land was examined by the complainants as a witness, and the defendants objected to his testimony on several grounds; one of them being, that he was a party to the suit, and interested on behalf of the complainants. He is one of the parties defendant in the suit which the bill is brought to enjoin — the terre-tenant upon the land which Bradford was proceeding at law to recover. He is, therefore, interested in perpetuating the injunction, which saves him from further defence in the court of law, and from all damages and costs in consequence of a recovery which may otherwise be had against him. The bare statement of the proposition seems to render argument unnecessary to establish his interest. The chancellor erred, therefore, in failing to exclude his deposition, and we must regard the case as though he had not been examined.

James Murray, another witness examined on the part of the complainants, states a most significant fact in relation to the subject under investigation. He first purchased this land, and took the assignment from Neves of Killough's bond for title ; and he swears that “ the consideration of the first transfer was about one thousand dollars, paid by this deponent to Daniel Neves and Job Taylor, jr.,” thus showing that Taylor was interested in the land, as otherwise it is not reasonable that he should have received a portion of the purchase money paid by Murray. Indeed, Murray proves that he bought the land of Taylor himself, notwithstanding the bond was to Neves. •

Littleberry Morris proves, that Neves admitted to him that Taylor was jointly concerned in the land, and referred him to Taylor for payment of the $1100 note.

John Sawyer proves, that he took the bill to Taylor and demanded payment, and was referred by Taylor to Neves, who, he said, was jointly concerned with him in the land, for payment. This witness says, he stated to Neves that Taylor said it was a joint matter between them, and Neves recognized it as such.

There is a good deal of other testimony, but none of it materially bearing upon the point under consideration, and we do not think that, when properly considered, it weakens materially the force of the answer.

In view of the evidence, and the issue made by the answer, we do not hesitate to hold, that the complainants have failed to make out their case. We are of opinion, that it would be inequitable to compel Bradford to part with the title until he is paid for the land, and that notwithstanding the arrangement between him and Taylor, changing the evidence of the demand, it still exists, and the lien for its payment is not destroyed. The evidence satisfies us that Taylor was acting for himself and Neves ; and the proof fails to sustain the bill, that Neves paid Taylor the amount of the note taken up by him. Indeed, the character of the transaction itself — the fact that Taylor required no endorsement of Neves’ note to him, coupled with the other fact that he referred the agent of Bradford to Neves for payment of the bill, sustained by the denial of the answer — very satisfactorily shows, that the giving of the bill was but an effort to raise money to satisfy the demand — was but the substitution of the bill for the note ; and the bill failing of its object in part, to the extent of that failure Bradford has the right to be remitted to his lien as upon the original demand.. — See Kean et al. v. Dufresne, 3 Serg. & Rawle 233.

It is said, as Bradford files no cross bill, he cannot enforce Ms lien in this suit, but can only pray to be dismissed the court. This is true. He, however, is pursuing his remedy at law, and does not ask the aid of the court of equity.

It results from what we have said, that the decree of the chancellor must be reversed, and the bill of the complainants must be here dismissed, but without prejudice to their filing a bill to obtain a title upon tendering the balance of the purchase money and the costs of the pending common-law suit, should Bradford refuse to accept the money and execute a title according to the stipulations of Killough’s bond. The complainants below must be charged with the costs of this court and of the court below.

Decree accordingly.