Foxworth v. Bullock

Simrall, J.: Jas. A Jordan (the intestate of the plaintiff in error), on the 17th day of August, 1866, was the owner of certainlands, stock, and other effects, conveyed to him on that day by Hugh Bullock and Caroline M. Bullock, his wife, for $2,750. On the 18th of the following September, the said Caroline M. Bullock, purchased back from said Jordan, the same property, for the same price, and took a deed for the land, and bill of sale for the personal effects, and with her husband and son, Joel J. Bullock, made and delivered to Jordan a joint and several promissory note, at twelve months after date payable in specie, at ten per cent, interest. The deed is dated 18th of October. The bill alleges, “ that at the time of the sale, the said defendants were confederated and combined to defraud said Jordan, and they fraudulently induced him to believe that said Hugh Bullock and Joel J. Bullock were solvent, able and willing to pay the note and interest,” and [463] moreover, it was understood and agreed, if said debt was not promptly paid, the sale should be treated for naught and can-celled. The prayer is that the sale and conveyances be cancelled ; that all the property be re-conveyed and delivered to the administrator, or failing in that, that the debt be declared a charge on the property, and that it be sold in satisfaction of the debt; and for general relief. The courts cannot make contracts or ^provide securities for parties. Judicial duty is to enforce, or give redress for non-performance or breaches, or relieve from unconscientioua bargains according to the exigencies of particular cases. It is incident to the dominion of ownership, that the proprietor may dispose of his property on such terms as he pleases. -If he sells on a credit, it is with him to carve out such securtiy as he chooses to rely upon. The law implies a lien on land sold for security of the purchase money. If, however, the vendor takes other and independent security, he will be considered as waiving the lien. In so far as the land is an element in the sale by Jordan to Mrs. Bullock, having taken a note with personal' security, it would be inferred that the vendor’s lien was abandoned. As to the personal effects, the law raised, or created, no lien or charge upon them for the price, so that the complainant does not show that he has any specific claim on the property. We held in the case of Whitworth v. Carter, 48 Miss., 61, that a married woman could not bind herself by promissory note, or otherwise, to pay for property bought upon a credit. That her coverture was a bar’ to a recovery at law upon the note. But if other parties joined ■with her as sureties for the price, they could not rely upon her personal disability to relieve them. It follows, then, that although the promissory note was avoidable, or nudum pactum as‘to Mrs. Bullock, yet it was obligotory upon her husband and Joel Bullock. It must be taken that Jordan, the vendor was aware that the wife could incur no legal liability by signing the note, and that he trusted to the credit and responsibility of the other makers of thre paper. It is the case [464] then, where the wife, by the terms of the contract becomes the recipient of the title, and others incur the duty of paying the price. We would not have the inference deduced from these observations, or the reasoning in any former adjudication, that a married woman can purchase on a credit, and when called upon for payment, set up her coverture in avoidance of the debt, and at the same time, retain the property. This would be to pervert her disability, which is her shield and protection, to be used as an instrumentality of fraud and injustice. If the vendor is defeated of his money, because of the coverture, be would have the right to be restored to his property, if in esse, or to a sale of the property to pay the debt, but for any deficit of full satisfaction would have no claim on the married woman, or her separate property. But this is an entire contract, a sale of land and personal effects 5 to be sure, the land and the several items of personal effects are segregated as to price, and the personal effects may not have been the inducement to buy the land, and vice versa. But the bill seeks,'either a rescission of the entire contract, or that the entire property be chargeable with the debt, and sold for its satisfaction. Now it is axiomatic in our jurisprudence, that the administrator has neither title nor interest in the lands and tenements of his intestate, and cannot intermeddle with them, except the contingency has arisen, when he may deal with them as assets for the creditors. It is not so much as averred in the bill, that the personal estate of Jordan has been exhausted, or that he is insolvent, and therefore a necessity has arisen that lie should take hold of realty. The whole interest in a rescission of the contract as to the lands, resides in the heirs or de-visees, and they are necessary parties to a'bill for vacating a sale on the ground of fraud and misrepresentation, or for any other reason. If Jordan was induced to sell to Mrs. Bullock, on the representation by her and her sureties on the note, or the latter alone, that they werd solvent and able to pay the debt at [465] maturity, and because of such representations, forebore to reserve a lien, or take a mortgage, and delivered by them, relying upon their truth, so far as to make no further inquiry; and if, also, he had no knowledge of their pecuniary circumstances ; and if, as stated in the bill, they had combined and conspired to delude and deceive him, and defraud him of his property, then it would be within the plain jurisdiction of equity, to deliver him from the snare, and restore him his property. Fraud vitiates everything-which it enters; all bonds, mortgages, judgments, conveyances had, obtained, and made, through covin and fraud, are void — void at the common law. No matter what shifts and devices are resorted to, if the owner, by circumvention and deceit and imposition, is entrapped into a contract, or is induced to part with his property, he shall be relieved. But the principle must not be carried beyond its just limits, because the purchaser and his sureties are insolvent, that of itself will not suffice to cancel the sale. The vendor can carry out and prescribe his own security. If he parts with his property, with a weak security, or none at all, it is his own folly; it is his duty to inform himself, and judge of its sufficiency and availability. Mr. Justice Story says, “It is a veiy old axiom of equity, that if a representation is made to another person going to deal in a matter of interest, upon the faith of that representation, the former shall make the representation good, if he knows it to be false. Story’s Eq. Jr., § 191. In Neville v. Wilkinson, 1 Brown’s Ch. R., 146, Lord Shelton declared, “ If a man, upon a treaty for any contract, will make a false representation, by means of which he puts the party bargaining under a mistake, it is a fraud.” So, in Hall v. Thompson, 1 S. & M., 82, Sharkey, C. J., declared, “It is not the mere opportunity to examine, which relieves the other party from the duty to disclose; if the vendee reposes confidence in the vendor, and does not examine for himself, the vendor will be bound for all statements and concealments.” Also, Oswald v. McGehee, 28 Miss., 351. The doctrine would seem to be [466] this : if these parties, induced Jordan,, by their representations, to sell to Mrs. Bullock, on the assurance that they were' solvent and able to pay, and be, without inquiry or investigation, trusted to these statements, and yielding his judgment? to implicit belief and confidence, acted; and if, álso, they were irresponsible, and knew it, then it was an imposition and fraud, from which he ought to be relieved; and proper parties, as his heirs or devisees, and his administrators, who succeeded to his rights, can sustain such a bill. This is the only aspect of the bill in which there is equity. But that view of it is much weakened by the delay in bringing the suit j two years is a long time to live by, and then sue for a rescission on the score of fraud; but, inasmuch as the justice of the case may be better attained by giving the heirs or devi-sees an opportunity to become parties complainant, and that the bill may be amended, charging the fraud, with more distinctness, and what influence the representations of the defendants had in inducing the sale. We affirm the decree of the chancellor sustaining the demurrer to the bill, but remand the cause with permission for the amendments we have suggested to be made at the next term 6f the chancery court, otherwise, that the bill be dismissed.