Honeycut v. Strother

ORMOND, J. — It is the settled law of this Court, that a purchaser of land, in possession, cannot refuse the payment of the purchase money for any defect of title in the vendor, as is conclusively shewn by the authorities referred to by the counsel for the plaintiff in error. But it does not appear, that the defence set up to this note, is a want of title in the vendor ; it [138] is a breach of a parol agreement, which the vendor entered into at the time the notes for the purchase money were executed. That agreement was, that three of the notes, which the defendant executed to the plaintiff, should be exchanged for three notes of the same amount and falling due at the same time, which the plaintiff owed to one Adams. The reason of the arrangement was, that the land had been purchased by the plaintiff from Adams, and these notes were a part of the purchase; and, until they were paid, the defendant could not get title to his land, which was to come from Adams. It was then, in substance, an agreement, that the defendant should become the paymaster of the notes, held by Adams on the plaintiff; and, in effect, the plaintiff became the agent of the defendant to substitute the new notes for the old. The question then, which is presented is, can the plaintiff, in disregard of this agreement, transfer the notes made for this particular purpose, and thus subject the defendant to the payment of both sets of notes ; for, although the defendant was not a party to the notes due from the plaintiff to Adams, until they were discharged, he could not obtain a title to his land. It is true, that, if the plaintiff had himself paid off the notes which Adams held on him, he would have been reinvested with the title to the new notes, and could have transferred or maintained an action on them in his own name, unless, in pursuance of the agreement, the defendant without notice of such payment, had acquired claims against Adams. That this is the true view of the case will be apparent, if we suppose the plaintiff to have retained the notes in his hands, and that the defendant had discharged the notes held by Adams; it would seem very clear, that, by operation of law, the notes held by the plaintiff, and which were the mere representations of those held by Adams, would be extinguished. Through the dim twilight of the bill of exceptions in this case we discern, that, in this manner, the controversy arose in the Court below. It is stated in the bill of exceptions, that Adams had been paid in full, all the claims held by him against the Plaintiff; but it is not stated by whom he was paid. It is further stated, that Strother, the defendant, paid t.o Adams one of the notes which he held on the plaintiff. It is also stated, that Crocheron had [139] given notice, that the note sued on was bis property, and that he had paid three hundred and sixty-five dollars of the plaintiff’s debts. Why this last fact was stated, does not appear; but it is calculated to raise an inference, that Honeycut is insolvent, and that this is a struggle between two of his creditors, on which a loss shall fall. . The inference which we deduce from the bill of exceptions is, that the plaintiff failed to substitute one of the notes executed by the plaintiff for one of the notes held by Adams — that this note the defendant has been obliged to pay, and by consequence, on the principles here laid down, the payment to Adams was a payment of the note which should have been substituted for it, but was withheld by the plaintiff. If in this we are mistaken, the fault must rest with those whose duty it was to present the point in a plain and distinct'manner. It is however objected, that the agreement for the substitution of the notes, being merely verbal, was a variance of the written agreement of the parties, and therefore void. The only written evidence of the agreement of the parties, was the assignment by the plaintiff of the bond of Adams to the plaintiff, and the notes executed for the purchase money : and we cannot perceive, that the parol testimony referred to, contradicts or varies it; but is entirely consistent with it. The cases of Murchie v. Cook and McNab, 1 Ala. Rep. (N. S.) 41; and W. & J. Simonton v. Steele, ibid 387, are in principle like the present. In both of those cases, it was held to be admissible, to prove by parol a particular mode of payment or discharge agreed on by the parties. It results, from what has been said, that there is no error in the charge of the Court, and the judgment is therefore affirmed.