Thompson v. Tilton

The Chancellor., The complainant, by his bill, seeks relief with respect to a contract, and the deed given by him in pursuance thereof, made in December, 1875, between him and the defendant for an exchange of properties. The complainant’s property was a farm of about forty-two acres, in Monmouth county, which was then in the hands of a tenant (an under-tenant), under a lease made by him. Part of it (about thirteen or fourteen acres), had been sown by the under-tenant with wheat, and another part, of about the same size, with rye. By the written agreement between the parties, the complainant agreed to secure to the defendant, for his own use, half of the rye j but the instrument is silent as to the wheat. The defendant entered into possession of the farm in pursuance of the exchange and under his deed, in the spring of 1876. The deed conveyed the property in fee simple with general warranty, and made no reservation of the crops or any part of them. The defendant, after entering into possession, denied the right of the under-tenant or his assignees to the wheat crop, 308 and, claiming it as his own under the deed, took it for his own use. The under-tenant’s assignees brought suit at law against the defendant, and recovered a judgment for the value of the crop. The defendant then sued the complainant for damages under the covenant of warranty, and recovered a judgment against him therefor, which is now pending on writ of error brought by the complainant. The complainant asks that the reservation of the wheat crop may be declared to be part of the agreement, and of the deed from him to the defendant, and that the defendant may be restrained from taking any action to affirm that judgment and from collecting it. The proof that the wheat crop was reserved for the under-tenant was very clear. He was entitled to both crops, and the defendant so understood it when the agreement was made. The complainant swears that on the occasion when the bargain was concluded, the defendant approached him on the subject of the exchange, and lie expressed his willingness to make it; that the defendant then said that the under-tenant had all the place sown 309 iii grain—wheat and rye; that the complainant said the tenant had no right to sow except on the ground on which he had sowed the wheat, and the defendant, in view of the fact that so much of the farm was sown, said that he would have nothing to till j that the complainant said he would guarantee to the defendant half of the ground on which the rye was, and the defendant replied that if he would do that and put it in writing, he would make the exchange, which the complainant agreed to do. The defendant got the agreement drawn, and had it so drawn as to secure to him the whole of the rye, which was not in accordance with the bargain; but he gives as his reason for having it so drawn that he intended to endeavor to induce the complainant to agree, for a further consideration, to secure to him the whole of the rye. The complainant, however, refused to sign the instrument as drawn in that respect, and himself corrected it so as to conform to the agreement. The deed contains no reservation whatever. The reason why a reservation was not inserted seems to have been that the scrivener by whom the deed was drawn 310 thought it was unnecessary, because, as he told the complainant, the agreement would protect him in that respect. After the exchange had been made, the defendant told both William W. Conover and Henry D. Hendrickson that it had been made, and that the complainant had reserved the wheat and half the rye, and Mr. Conover swears that, subsequently to the conversation with him, the defendant told him that he had- got a warranty deed, and could hold the rye and all the grain, and was going to do so. William W. Conover swears that the defendant told him that the complainant reserved the gráin, but had not put the reservation in the deed ; and he testifies that the defendant further said that he thought he could hold the grain, because the deed contained no reservation. The fact that the stipulation was made-in the written agreement to secure to the defendant half of the rye, is not only evidence that the latter knew that the crops belonged to the tenant, hut raises a strong inference that he was not to have any of the wheat. The weight of the evidence clearly is that he so understood it., and that, finding that under the 311 covenants in the deed he could hold the complainant liable at law for the wheat crop, he determined to avail himself of the covenants accordingly. The complainant is entitled to the relief which he seeks. But not vendee’s parol promise to sell the land and credit any profits on such sale on an indebtedness to him, Kidd v. Carson, 33 Md. 37. See Trow-bridge v. Wetherbee, 11 Alien 361. A grantee in a deed may show a parol agreement, contemporaneous with his deed, to pay off a mortgage on the premises, T'aintor v. Hemmingway, 18 Hun 458; Murray v. Smith, 1 Luer 413 ; Treridich v. Mumford, 31 Mich. 457; Pitman v. Conner, 37 Ind. 337; Thomas v. Hammond, 47 Tex. 43; McDUIy. Gunn, Ifi lnd. 315; Negley v. Jeffers, 38 Ohio St. 90; HoysradtY. Holland, 50 N. II. 483, But see Duncan v. Blair, 5 Denio 196; Machir y. McDowell, 4 Bibb 473 ; Howe v. Walker, 4 Gray 318; Sage v. Jones, 47 lnd. 183 ; and taxes, Brackett v. Evans, 1 Oush. 79; Headrick y. Wisehart, 57 lnd. 139, 41 lnd. 87, 48 Ind. 144 ; Preble v. Baldwin, 6 Oush. 549; Landman y. Ingram, 49 Mo. 813; Herscy v. Verrill, 39 Me. 371; Shields v. Harrison, 77 N. C. 115; McLennan Y. Cheguin, 37 U. C. Q. B 301; aider as to subsequent rents or taxes, Smart y. Harding, 39 Eng. L. <fc Eq. 353; Walker v. McDonald, 5 Minn. 455. See Hand v. Liles, 56 Ala. 143; and municipal assessments, McCormick Y. Cheevers, 134 Mass. 363 ; Swindell v. Richey, 41 Ind. 381; Carr v. Dooley, 119 Mass. 394; and judgments, Besshears v. Rowe, 46 Mo. 501; and pay for fixtures, Heysham Y. Deltre, 89 Pa. St. 506; Hensley v. Brodie, 16 Ark. 511; Bostwick v. Leach, S Day 476; Mott v. Palmer, 1 N. 7. 564. See Noble y. Bosworth, 19 Pick. 314; West Y. Blake, 3 Mann. & Or. 739 ; and a subsisting lease, Allen v. Lee, 1 Ind. 5S; Bomrey Y. Morrill, 57 Me. 868; and that vendee was to use a certain amount of coal annually from the land, Graver v. Scott, 80 Pa. St. 88. A parol exception of a barn from lands conveyed by deed, is void, Detroit R. R. v. Forbes, 80 Mieh. 165; Laudon v. Plait, 34 Conn. 517; Whitaker y. Cawthorne, 3 Dev. 389 ; or, of a gin-liouse, Bond v. Coke, 71 Ff. G. 97; or, of a saw-mill, Pea v. Pea, 35 Ind. 387; or, of a house, Gibbs v. Estey, 15 Gray 587; Duff v. Snider, 54 Miss. 245. But see Dame v. Dame, 38 N. JSC. 429. Or, of manure, Gounce v. Foster, 9 Ff. IF. 538 ; Goodrich v. Jones, 2 Mill 142; Conner v. Coffin, 22 N. II. 538 ; Proctor v. Gilson, 49 FT. M. 62. See Ruekman v. Out-water, 4 Dutch. 581. Or, of timber, Safford v. Amis, 7 Me. 168 ; Warren v. Be-laud, 2 Barb. 613. But see Carpenter v. Ottley, 2 Bans. 451; Stickney v. Parmenter, 35 Mich. 237 ; Cockrill v. Downey, 4 Kan. 426; Jones v. Timmons, 21 Ohio St. 596. Or, of a partition wall, Wickersham v. Orr, 9 Iowa 258 ; Rice v. Roberts, 24 Wis. 461; or, of unaccrued rents, Winn v. Murehead, 52 Iowa 64; or, to obtain vendor’s wife to release her dower, Martin v. Wharton, 38 Ala. 637; or, the use of a spring on the premises sold, Vermont R. R. Co. v. Mills, 23 Vt. 681; or, of a license, Voorhees v. Burchard, 6 Bans. 176, 55 N. V. 98 ; Jungerman v. Boree, 19 Cal. 354; McKee v. St. Louis, 17 Mo. 184; Kent v. Kent, 18 Pick 569. A parol agreement as to the possession of lands Gonveyed by deed, is good, Mersey v. Verrill, 89 Me. 271; Quimby v. Slebbins, 55 FT. M. 420; Merrill v. Blodgett, 34 Vt. 480; Parsons v. Camp, 11 Conn. 525; Willis v. Murlbert, 117 Mass. 151; Miranville y. Silverthorne, 1 Grant’s Cas. 410. Contra, Gilbert y. Bulkley, 5 Conn. 263; Gough v. Dorsey, 27 Wis. 119; Mellon v. Watkins, 24-Ala. 433; Drake v. Boot, 2 Colorado 6S5 ; Loomis v. Loomis, 60 Barb. 22; Jones v. 'Timmons, 21 Ohio St. 596; Howard v. Easton, 7 Johns. 205. But not as to tlie right of rescission or re-purchase, McFhian v. Ortman, 34 Mich. 325; Graves v. Graves, 45 H. H. 323; Sennetl v. Johnson, 9 Pa. St. 335; Paitison v. Horn, 1 Grant’s Cas. 301; Peacock v. Nelson, 50 Mo. 256; Beers v. Beers, 22 Mich. 42; Burrell v. Root, 40 N. Y. 406; Wemple v. Knopf, 15 Minn. 440; Ahrend v. Odiorne, 118 Mass. 861; Bonham v. Craig, 80 N. C. 824; Ballard v. Bond, 32 Vt. 355 ; Campbell v. Campbell. 2 Jones Eq. 364 ; Gallagher v. Mars, _ 50 Cal. 23. But see Greenawalt v. Kohne, 85 Pa. St. 369 ; Boyd v. Stone, 11 Mass. 342; Arrington v. Porter, 47 Ala. 714; Davis v. liiscoe, 84 N. C. 396; Tee v. Lee, 11 Rich. Eq. 574; and an agreement not to carry on the same business as had been carried on in the premises sold, Pierce v. Woodward, 6 Pick. 206 ; Leinau v. Smart, 11 Humph. 309 ; Fusting v. Sullivan, 44 Md. 162 ; War-field v. Booth, 33 Md. 63; Bostwich v. Leach, 3 Day 476 ; Gottschalk v. Witter, 25 Ohio St. 76 ; Whitaker v. Welsh, 2 Pug. 436,- Perkins v. Clay, 54 N. H. 518 ; and a contract to repair, Manning v. Jones, Busb. 368; Buzzell v. Williard, 44 Yt. 44- See ButlemereY. Hayes,' 5 M. & W. 456; Nieoll v. Burke, 78 N. Y-580; Cleves v. Willoughby, 7 Hill 83. That a parol reservation of crops from a written contract of sale or deed for the lands whereon the crops are growing, is void, see Vanderkarr v. Thompson, 19 Mich. S2; Bloom v. Welsh, 3 Dutch. 179; Brown v. Thurston, 56 Me. 126; Smith v. Price, 39 III. 28; Mcllvaine v. Harris, 20 Mo. 457; Harbold v. Kuster, 44 Pa. St. 392; Backensioss v. Stabler, 33 Pa. St. 351; Wintemute v. Light, 4® Barb. 378; Burnside v. Wightrnan, 9 Watts 4®; Johnson y. Tautlmgei; 31 Iowa 500; Turner v. Goal, 33 Ind. 56; Wood v. Lang, 5 T7. O. G. P. 304, Contra, Merrill v. Blodgett, 34 Vi. 480; Flynt v. Gomad, Phil. (N.'. G.) 190; Powell y. Bicli, 41 III- 466; Harvey v. Million, 67 Ind. 90; Baker v. Jordan, 3 Ohio St. 438; O’Lell v. Coyne, 4 TJ. G. O. P. 453. See Benner v. Bragg, 68 Ind. 338; Robinson v. Pitzer, 3 W. Va. 335; Moble v. Smith, 3 Johns. 53. A defendant in execution cannot, by parol, authorize a levy on growing trees or grass, Bank of Lcmsingburgh y. Orary, 1 Barb. 543. See McKenzie v. Lampley, 31 Ala. 536 ; Osborn v. Babe, 67 III. 108 ; Oudworth v. Scott, 41 K- H. 456 ; Adams v. Smith, Breese 383; Hay don v. Crawford, 3 TJ. G. Q. B. (O. S.) 583. Where growing grain has been reserved, from a deed of the lands, a subsequent purchaser of the crop, with notice of the reservation, is hound thereby, although the reservation was by parol, Burnside v. Weightman, 3 Watts & Serg. 368; Harlan v. Harlan, SO Pa. St. 303; Moats v. Witmer, 3 Gill & Johns. 118; East v. Ealer, 34 La. Ann. 139; Davis v. Brocklebank, 9 N. H. 73; Lame v. Lame, 38 M. H. 439. But see Goff v. O'Conner, 16 III. 431; Byasse v. Reese, 4 Mete. {Ky.) 374; Westaott y. Lelano, 30 Wis. 514; Sanders v. Ellington, 77 N. O. 355; Milliman v. Meher, 30 Barb. 37; Seatoff v. Anderson, 38 Wis. 313. Equity may grant relief to the owner of the crops; Lauehner y. Rex, 30 Pa. St. 464; Barnes v. Shinholsler, 14 Ga. 131; McGuiness v. Kennedy, 39 TJ. G. Q. B. 93. But see Young y. Miller, 10 Ohio 85.—Rep. In Hendrickson v. Ivins, Saxt. 562, such relief was granted ■under similar circumstances. The defendant’s claim that the complainant has forfeited his right, if any he had, to the aid of this court in the premises, by his delay in invoking it, cannot avail him. He has lost nothing by that delay. He has, indeed, been involved in expensive litigation, which would not have taken place had the complainant come here for relief at an earlier ■day; but the litigation was the result of the defendant’s disregard of the agreement, and his determination to take advantage of the failure of the instrument to express the whole agreement between him and the complainant, and inequitably to avail himself of the covenants in the deed; which covenants, it may be added, the complainant was not bound to give. The injunction will be made perpetual, with costs.