Doyle v. Orr

Simrall, J., delivered the opinion of the court. It is insisted by the defendant, first, that the vendor’s lien was waived by personal security for the deferred payments ; second, that the setoff pleaded in the cross bill ought to have been allowed. If either of these defenses is sustained, the decree is erroneous. The conveyance was made to the wife, the note for the purchase money was signed by husband and wife. It is now urged [232] that the husband was surety for his wife, and since the vendor has elected to rely upon personal security, it will be presumed that he waived his equity. In principle this is like the case of Upshur v. Hargrove, 6 S. & M., 291. There, the husband, by written contract, agreed to become the purchaser, but the deed was made to the wife. He was personally bound to the vendor for the price, the wife was a mere volunteer, incapable of incurring a binding obligation for the money. In effect it was like a conveyance to the husband by the vendor, and then a conveyance to the wife. She would be the recipient of the title, and as against the land the equity would still subsist. No person except a bona fide purchaser for value can successfully resist the vendor’s claim. See also Russell v. Watt, 41 Miss., 608; Halloway v. Ellis, 25 id., 103; Davis v. Pearson, 44 id., 510. We think that the vendor did not waive his lien. The second question is: Can the defendants set up the note, mentioned in the cross bill, as a setoff against complainant’s demand ? The note has this origin. In 1855, one Carpenter as trustee sold the land for the benefit of J. P. Darden, when W. J. Orr became the purchaser for his wife, to whom the conveyance was made. For part of the purchase money, W. J. Orr, with one Montgomery, gave their note to Darden, for whose benefit the sale was made. Subsequently this note was taken up by the note of W. J. Orr and Temperance, his wife, payable to Darden. On the death of J. P. Darden, a distribution of choses in action and effects was made among his heirs and distributees by mutual consent. The note of Orr and wife was assigned by the distributee (who had received it in the division) to the defendants. In their cross bill they claim that this debt constituted a lien in equity on the land superior and elder to that asserted by the complainants. The facts do not sustain that pretension. Prior to the sale by the trustee, it was arranged between J. P. Darden and W. J. Orr that the latter should buy the land for his wife, and that part of the price should be secured by the note of W. J. Orr and Montgom [233] ery at 10 per cent, interest. Darden selected the security upon which he would rely. But he had no recourse on the land, he was merely the cestui que trust, the creditor, secured by the trust deed, and was therefore competent to make whatever arrangement he saw fit with a purchaser from the trustee. The arrangement actually consummated, separated his debt from the land, so that it rested alone on the personal obligation of W. J. Orr and Montgomery. The subsequent surrender of the note, for that of Orr and wife, did not create in favor of Darden an equity on the land. The transaction has this complexion: W. J. Orr negotiated a purchase of land for his wife, partly for cash, and the balance on the personal security of himself and Darden. Darden, the beneficiary, consented that the conveyance should be made by the trustee to Mrs. Orr, and that he would trust to W. J. Orr and Montgomery for part of his money. When he gave up that note, and accepted in substitution for it the note of Orr and wife, he must be held to rely exclusively upon the latter obligation. In legal effect it is the contract of the husband alone. It imposed no liability on Mrs. Orr. But Mrs. Orr is the vendor of the land, and is entitled to the purchase money for her individual use, and as her separate property. When it is ascertained that there is no lien in equity upon the land for the payment of the note to Darden, and no personal liability on Mrs. Orr, the defense attempted to be set up is, that the debt of W. J. Orr, the husband, shall be set up against the demand of Temperance, his wife. The defendants cannot defeat the equity of Mrs. Orr, by preferring the personal debt of her husband, which they have acquired by assignment, as an offset against her demand. Condon v. Shehan, 46 Miss., 712; Duncan v. Lyon, 3 Johns. Ch., 351; Howe v. Sheppard, 2 Sumn., 412. We think that this ground of defense was properly overruled by the chancery court. It follows that there is no error in the decree, and it is affirmed.