Newell v. Crider

Tarbell, J., delivered the opinion of the court: Mrs. Crider sold and conveyed to A. J. Norton a tract of land,, for which the latter agreed to pay $400. It does not appear whether a vendor’s lien was reserved in terms, or other security taken, nor even whether notes were executed by Norton; but-simply that he owed Mrs. Crider $400 for land sold and conveyed to him by her and her husband. While so indebted to Mrs. Crider, Norton opened negotiations with Mrs. Newell, for the purchase of a tract of land of her. Pending this negotiation, Norton informed the Criders of its pendency, and that, when consummated, he would convey to Mrs. Crider, in payment of his indebtedness to her, a specified number of acres, out of the tract for-which he was thus negotiating. Accordingly, having received a543 deed from Mrs. Newell, he proceeded with it to the Criders, when, as he had promised, he executed a conveyance to Mrs. Crider of a parcel of the tract conveyed to him by Mrs. Newell. There was nothing on the face of the deed from Mrs. Newell to Norton, reciting the reservation of the vendor’s lien; nor was there anything to show that the purchase money was in whole or part unpaid; but, on the contrary, the deed was in the usual form, acknowledging receipt of consideration. Whether or not the purchase by Norton of Mrs. Newell was on a credit, did not appear in the deed, nor by any writing; nor, as far as the record discloses, was the matter spoken of or mentioned by any one from first to last. In fact, however, Norton purchased of Mrs. Newell on a credit. Neglecting to pay her, she proceeded to enforce her vendor’s lien by a suit in chancery, wherein she obtained a decree for the sale of the entire tract conveyed to him. To this proceeding, the Criders were not parties. The land having been sold under the decree, and Mrs. Newell becoming the purchaser, she instituted this proceeding to set aside the deed from Norton to Mrs. Crider, as a cloud upon her title. The chancellor decreed adversely to Mrs. Newell, whereupon she appealed to this court. The final decree is the only error assigned, and is based on the sole argument that Mrs. Crider is not a bona fide purchaser from Norton. The facts have been substantially stated. They may be recapitulated. Whether Norton purchased of Mrs. Newell on a eredit was not disclosed by the deed from her to him, and exhibited to-both the Criders; nor by any writing; nor by any conversation, or remark, question, rumor or observation of any sort whatever. To a question why he did not inquire as to the fact, Mr. Crider said it was, or he considered it none of his business. It is-manifest, from the record, that there was a very searching investigation in the court below upon this branch of the case, yet, as far as can be seen, without discovering or developing any grounds for putting the Criders upon inquiry even, while actual knowl [544] edge is emphatically negatived. If, then, Mrs. Crider is not a bona fide holder of the title from Norton, as against the equity of Mrs. Newell, it must be upon the fact, which is most earnestly pressed by counsel, that the conveyance from Norton to Mrs. Cri•der was in consideration of a pre-existing debt which, it is testified, was canceled by the Criders upon receipt of the deed from Norton, and in consideration thereof. The testimony is, that the debt to Mrs. Crider was “ canceled and extinguished.” The argument is earnestly pressed by counsel, but the question involved is understood to be definitely settled in this state, in accordance with the decree now sought to be reversed. Love v. Taylor, 26 Miss., 567; Perkins v. Swank, 43 ib., 349; Hinds et al. v. Pugh, 48 ib., 275. The testimony brings the case at bar fully within the doctrine of the cases cited. In consideration of the conveyance from Norton to Mrs. Crider, the indebtedness of the former to the latter was “ canceled and extinguished.” This constitutes a new and valuable consideration, and, under the facts of this case, creates Mrs. Crider a bona fide purchaser according to the cases cited. Perkins v. Swank was not intended to, nor does it in any respect modify the rule declared in Love v. Taylor. So far from this, the former follows the latter literally. In Hinds v. Pugh, it is said: “ And all the authorities agree, that if the creditor relinquish a pre-existing security for his debt, that will constitute him a purchaser for a valuable consideration, and, if that be so of the security merely, a muHo fortiori, must the relinquishment of the debt itself have that effect?” Thus the rule in the case stated is clearly defined in this state. Love v. Taylor is based on Swift v. Tyson, 16 Peters, 1, and no objections to the reasoning in the former are regarded as well founded. This will doubtless finally settle the question involved, so far as our own state is concerned. The question now disposed of was not presented in Rowan & Harris v. Adams et al., 1 S. & M. Ch. R., 45; nor did Ag. Bank [545] v. Dorsey, Tremain Ch. R., 388, turn upon this point, as will be seen by reference to the conclusion of the opinion of the chancellor, on page 344. The cases of Coddington v. Bay, 20 Johns, R., 637, and of Dickerson v. Tillinghast, 4 Paige Ch. R., 215, cited by counsel, are clearly distinguishable from the one at bar. Those cases state merely the now well recognized distinction between the cancellation and extinguishment of a prior debt, and, on the other band, of its payment, which operates as a security only. See, also, Governeur v. Titus, 6 Paige, 347. It is unnecessary to point out the dissimilarity between this case and the cases of Upshaw v. Hargrove, 6 S. & M., 286; Boon v. Barnes, 23 Miss., 136; Dunlap v. Burnett, 5 S. & M., 702, to which reference is made, as the distinction will readily appear upon inspection. Decree affirmed.