Waddell v. Latham, Alexander & Co.

Cooper, J., delivered the opinion of the court. It is far too late for the appellant to set up the claim that he is a purchaser of the lands under an executory and not an executed contract. Doubtless that was the attitude it was intended for him to occupy, and when the deed was intrusted to him it was not intended to be delivered by the grantor. But the appellant put it to record; refused to restore the status quo, upon the ground that to do so would be an admission that the grantor had justly lost confidence in him; occupied and leased the land for many years, and, finally, by his sworn answer and cross-bill, unequivocally asserted that the delivery of the deed was absolute and unconditional. Though what was done was not intended by the grantor as a delivery of the deed, he had the right to treat it as a delivery, by reason of the conduct of appellant, and to exhibit his bill to foreclose the lien for the purchase-price. It suits the appellant now to occupy the inconsistent attitude of a purchaser under an executory contract, for the reason that, if he can occupy this relation, it will devolve upon complainant the burden of proving that he has a good title to the lands sold before he can call on appellant to consummate the contract and pay the purchase-price. But, since appellant cannot now be treated otherwise than as a vendee in the undisturbed and undisputed possession of the [356] land, it devolves on him to show clearly the defect of title relied on by him. The grantor being confessedly insolvent, a court of equity will refuse to compel the grantee to pay the purchase-price, although he has not been evicted, if it is made to appear that the title is invalid. Johnson v. Jones, 13 Smed. & M., 580; Kilpatrick v. Dye, 4 Ib., 289; McDonald v. Green, 9 Ib., 138; Wailes v. Cooper, 24 Miss., 208; Gartman v. Jones, Ib., 234; Miller v. Lamar, 43 Ib., 383. But the defendant must clearly show the defect of title, and that if sued he cannot maintain his possession. Moss v. Davidson, 1 Smed. & M., 112; Ayers v. Mitchell, 3 Ib., 683; McDonald v. Green, 9 Ib., 138; Green v. McDonald, 13 Ib., 445. The appellant failed to show the invalidity of the title of the grantor. At most, he has shown a title imperfect in written muniments, but supported by possession certainly sufficient in time, and probably in character, to cure all defects. Counsel is mistaken in stating that the pleadings admit that by accident a part of the land intended to be conveyed was omitted from the deed, and that, without directing a correction of this error, the court has decreed a sale not only of the land described in the deed, but of that omitted. The final decree directs the grantor to convey this land within twenty days from the date of the decree, and, in default thereof, that the clerk of the court, acting as commissioner, shall make the conveyance. We find no error in the decree, and it is Affirmed.