Clemens v. Loggins

ORMOND, J. — The tender of the purchase money of the land, and demand of title, as well as the refusal of the vendor to make title, were facts which it was competent for the defendant in error to prove; but the declarations of Cooper, the vendor of the land, and assignor of the plaintiff, that he had not title, were not evidence in this action, because he was competent to testify for the defendant in the cause, as has been repeatedly held in this court; and therefore, for that cause, if no other existed, his declarations could not be given in evidence. There was no error in the refusal of the court to charge, that the plaintiff, in the absence of fraud, could recover, even if the vendor had no title. It is clear, from the testimony in the cause, that the contest in the court below, was, whether there had been a recision of the contract for the sale of the land, and a yielding of the possession to Cooper, the vendor. It is true, that if the defendant had remained in possession of the land, it would have been unimportant whether Cooper had title or not; and the charge asked for, can only be supported on the concession that such was the fact. This fact the jury alone could determine, and the vice of the proposition is, that it lakes from the jury the consideration of this question. Understanding the second charge to mean, that thepossession there spoken of, was a continuing possession, it should have been given by the court. No principle is better settled, than that the vendee of land can retain the possession, and refuse to pay the purchase money. The qualification annexed to the refusal to charge, is also erroneous. A mere abandonment of the possession is not, of itself, sufficient to rescind the-contract. [626] A vendee of land, may tender the purchase money according to his contract, and demand title, and if the vendor refuses to make title, the vendee may abandon the possession and thus rescind the contract; but, in supposing that abandonment of possession was sufficient, without a demand of title and refusal to make it, the court erred. The bond for title is not set out in the record, and we are therefore unable to say, whether the defendant had a right to demand a title, before the last note fell due. (See Newell v. Turner, 9 Porter 420: and Larkin v. The Bank of Montgomery ibid. 434.) The third charge was correctly refused. A promise by the maker, to pay the assignee of a note after the assignment, being without any consideration, will not preclude him from availing himself of any defence to the note, which existed previous to the notice of the assignment. The fourth charge, that if the jury believed the testimony, they must find for the plaintiff, was also correctly refused. Such a charge would only have been proper, in a case where there was no conflict between the witnesses; and the facts were clear, direct and positive. In this case, if some of the defendant’s witnesses were believed, there was a recision of the contract by agreement of the parties; as the proof, was that Cooper the vendor, after the tender of the purchase money and refusal to make title, was in possession of the land, exercising ownership over it. There was also testimony introduced by the plaintiff, which, if believed by the jury, would justify the conclusion that there was no recision of the contract, either by operation of law, or by the agreement of the parties. The decision of the question therefore, could only be made by the jury, who are alone competent to judge of the credibility of witnesses, and the weight of testimony. For the error of the court, in refusing to give the second charge, as asked for, and for the wrong qualification annexed to it, the judgment must be reversed, and the cause remanded for further proceedings.