Miller v. Lamar

Simrall, J.: Nathan Lamar brought his bill in chancery on the 4th of March, 1867, against the plaintiff in error, to subject a tract of land, sold by Lamar to John H. Miller, to the payment of a [388] balance due on the last installment of the purchase moneys To the original bill, the children, heirs of John H. Miller (who had deceased), were made defendants. But the land having been devised by said Miller to his widow, the plaintiff in error, the suit was dismissed as to the children. The original bill states that the sale was made about the 28th of April, 1857, when Miller executed to Lamar his three several promissory notes, maturing respectively, the 1st of January, 1858,1859,1860, and Lamar executed to Miller his bond to convey the title on final payment of the installment. The first and second notes were paid by Miller in his life-time, and also a partial credit made on the last note. That about the 1st of March, 1860, a deed was made to Miller, at his earnest solicitation, on his assurance that the balance of the debt would be shortly paid; that Lamar in executing the conveyance, confided in this assurance of speedy payment. After the heirs of Miller had been dismissed from the suit, an amended and supplemental bill was preferred against Mrs. Eliza Miller, repeating the allegations of the original bill, and introducing the matter, that the land had been devised to her. To this bill, Mrs. Miller in August, 1867, filed her answer. She admits the sale of the land, the execution of the notes, bond for title, and the deed, and insists that payment in full had been made by her devisor, at or about the date of the deed. Alleges that one-half the land is under a cloud, and color of title in one Moses Woods (or his heirs), who purchased the land prior to the sale by Lamar to Miller, from the “ American Land Company.” An amended answer and cross-bill was subsequently filed by Mrs. Miller, in which she reiterates the statements of her original answer, with the further allegation that Lamar is insolvent, and therefore the covenants in his deed would afford no solid protection against this title in Woods or his heirs. No deed, or other paper, tending to show the character of this title in Woods, was exhibited, or in any manner appears in the record. To the cross-bill there was a'demur [389] rer, on. the grounds — 1st. There had been no eviction, or effort to evict Miller, averred. 2d. No allegation that Miller purchased without notice. The demurrer was sustained, and leave given defendant to answer over in ninety days, by consent of parties. On 16th October, 1868, a pro oonfesso was taken against Mrs. Miller, for not answering according to the leave granted in the foregoing order. The case was set for hearing on amended bill, pro oonfesso, exhibits, and report of the conr missioner. A decree was made to sell the land; from which the case is brought to this court. Several questions are made in the assignment of errors, which will be considered rather in a group. Was the demurrer to the cross-bill properly sustained ? Its equity, if any, consists in the facts that there was a title (embracing half the land), older than Miller’s purchase from Lamar, derived by Woods from the American Land Company, which is a cloud and encumbrance on her title, and that because of Lamar’s insolvency, the covenants in his deed are no adequate security. We take the rule to be, that where the conduct of the vendor is free from fraud, and there has been no misrepresentations of material matters, relief against payment of the purchase money will not be granted, unless there has been an eviction by title paramount. In such circumstances, the purchaser will be remitted to his covenants in his deed. If the vendor and warrantor be insolvent, so that recourse to the covenants would be worthless, equity would not wait for the eviction, and leave the purchaser utterly without redress, but would interpose. But the case must be as strong in its merits as an eviction. It does not suffice, as in this bill, to aver that there is a title or deed to part of the land, made prior to the sale to Miller, by the American Land Company to Moses Woods. But it must be distinctly shown that there was a title in the American Land Company, superior and paramount, which passed by the deed, to Woods; and that on the assertion of this title, the devisee of Miller would loose the land. If the vendor knew of the [390] outstanding cloud or encumbrance on the title, at the date of his purchase, he cannot set it up as reason for not paying the purchase money, but must rely on the covenants in the deed. Wailes v. Cooper, 24 Miss. Rep., 232; Guice, adm., v. Sellers and wife.* The cross-bill does not deraign the title said to be in Woods, or his heirs; does not exhibit any m,uniment or evidence of such title; does not allege that any person claiming under it threatens suit; does not disclose how, or in what mode this claim could ever disturb either the title or possession of the devisee. The argument is made by the counsel for plaintiff in error, that this defense ought to be admitted, because it does not appear that Miller was let into possession by Lamar. This does sufficiently appear. The averment is that Lamar “ was seised and possessed ” of the land when he sold. The deed invested Miller with a seisen in law, and a right of entry. Mrs. Miller does not state that her husband was not in possession in fact under his title, nor that she, as devisee, is not in possession. The demurrer was properly sustained. The cause was set down for hearing on the amended bill, the exhibits, pro confesso, and report of the commissioner. (The decree also so recites.) Yet the answer of the respondent, Mrs. Miller, to this bill was in, and regularly on file ; sustaining the demurrer, and dismissing the cross-bill did not displace it. The purpose of the cross-bill was to obtain relief on the new matter set up. The decision on the demurrer could have no other consequence than to put the cross-bill entirely out of consideration. The answer, however, still remained, putting in issue the full payment of the debt claimed by the bill. The answer was filed August 16, 1867 — final decree was rendered October 16, 1868, so that the parties were at issue more than a year. After the lapse of five months from the putting in of the answer, the case may be set for final hearing — leaving the onus of proof where the pleadings place it — that time being allowed for taking testimony. [391] The answer substantially admits that the promissory note, claimed in the bill as unpaid in part, was given for the last of the three installments for the land, but avers on information and belief, ” that full payment was made by her husband in his life-time. This is a new affirmative fact in exoneration and discharge, and to be of avail must be proved — the onus resting on the respondent. If the cause had gone to final hearing on the original bill, exhibits cross-bill and answer, we would have had no difficulty in determining that the vendor’s lien still adhered to the land, and that the complainant was entitled to the decree; for the defendant had offered no testimony to prove her defense of payment. The case would then stand thus : The sale, the execution of the notes and the deed, are admitted. These constitute the complainant’s equity. But the respondent relies on payment. She had more than the time allowed by the statute to take testimony, but has offered no evidence to prove the allegation. It was palpably irregular to have disregarded the answer, on final hearing. If we could see how the plaintiff in error was prejudiced thereby, we would remand the cause. If, at the term when thepro confesso was entered, the respondent had objected because she was not in default, or, if the case was not in an attitude, the moment it was returned to the chancery court, for hearing, and decree on the bill and answer and exhibits, we should be inclined, for this technical reason, to remand the case. The point, however, is purely technical. This court, giving to the answer all the consideration it would have been entitled to in the chancery court, at the hearing, are of the opinion that justice has been done. The attention of the chancellor may not have been called to the state of the pleadings. The ninety days extended, by consent, to the respondent to make further defense, having expired, and no other opposition made, the solicitors may have been induced to believe that the defendant had surrendered the case. Let the decree be affirmed. Footnotes [*] Supra, p, 52.