Ash v. Holder

Wagner, Judge, delivered the opinion of the court. It is unnecessary to determine the point, extensively discussed-in this case, as to whether the respective obligations relied on were in the nature of mutual, concurrent, or independent covenants. In view of the special facts, the question is unimportant. Appellant, by his own act, had precluded the respondent or his intestate from complying with the covenant contained in the title bond, by buying up the outstanding title and vesting it in himself. The material question is, whether a purchaser taking possession of premises under a bond for title, can, on discovering a defect in the title of his vendor, buy in the outstanding title and hold the same adversely. It is well settled that a vendee may dispute the title of the vendor after conveyance passed, because then he owes him no faith or allegiance; he holds adversely to him and all the world. But where there has been a sale, but no Conveyance, the party taking possession under a bond for title cannot set up an outstanding title to defeat the vendor. The vendor and vendee are then said to stand in the relation of landlord and tenant. (2 Marsh, 242 ; 5 Yerger, 398 ; 3 Pet. 43 ; 12 Pet. 264.) This is the general rule, though there are cases in which it has been varied. Its justice and propriety are strongly vindicated by the facts in this cause. At the appellant’s instance and request the respondent’s intestate purchased the land out of which this suit originated, and agreed to take it [167] off Ins hands at the same price and on the same terms which he gave for it. The contract price was upwards of two thousand dollars. In pursuance of the agreement the appellant took possession of the land under a bond for title, and has been in quiet and undisturbed possession ever since. Upon discovering a defect in the title, he notified his vendor of its existence, who then gave notice to the person of whom he purchased. The latter made an unavailing effort to find the persons who held the legal title and purchase the same ; afterwards appellant, on becoming acquainted with the residence of those in whom the legal title was vested, proceeded to acquire the same for the sum of three hundred dollars, without giving any notice to his vendor. Good faith and fair dealing will not support such a proceeding. He who seeks equity must do equity. The offer to rescind was of no consequence ; the claim was not relinquished to the vendor, nor the possession abandoned. The money and the land could not both be retained. The appellant insists that respondent’s intestate was guilty of fraud in the sale of the lands; but if there is any fraud in the case, it is very evident it was not committed by the latter. The court allowed a credit of three hundred dollars on the notes, the amount paid in purchasing in the outstanding tille, together with the expenses laid out and expended in procuring the same. This was as favorable for the appellant as could have been asked. The title acquired by the appellant enured to the benefit of the respondent’s intestate, though it vested the legal title in the former. It may be con-^ sidered the same as if a direct conveyance had passed between the parties. This being the case, the vendor in contemplation of law having complied with his contract, and the suit being simply for the sale of the land, we are not prepared to say that the heirs were indispensable parties. The judgment is affirmed. The other judges concur.