Pouns v. Gartman

Mr. Justice Fishes, delivered the opinion of the court. [136] The appellees as administrator and administratrix of the estate of Z. Pendleton, deceased, filed this bill in the vice-chancery court holden at Monticello, against the heirs at law of Joseph Pouns, deceased, and one Henry Sones, to enforce the vendor’s lien for the unpaid purchase-money, due on account of a tract of land, sold by the said Pendleton in his lifetime to Joseph Pouns. The defendants below, who had been served with process, and otherwise legally notified of the pendency of the suit, appeared and filed a demurrer to the bill, which was by the court overruled; the defendants afterwards failing to answer the allegations of the bill, a pro confesso was entered, and a decree pronounced for the. complainants for the amount of their claim, and ordering .the land to be sold for the purpose of satisfying the decree. The facts, though voluminous as stated in the bill, may be summed up briefly as follows: Pendleton sold the land to Pouns on the 11th September, 1837, for the sum of $4,044.25. Pouns soon thereafter died, leaving about $3,900 unpaid. Pen-dleton and Samuel J. Pouns administered on Joseph Pouns’s estate, whose heirs were anxious to relieve his personal estate from the payment of the balance of the purchase-money due to Pendleton. An arrangement was accordingly made, by which the tract, of land was sold to Henry Sones, who assumed the payment of the balance of the money due from Pouns’s estate to Pendleton, the heirs of Pouns, who were of age, consenting to this sale. Sones having executed his notes to Pen-dleton, one of them was sued upon in the circuit court of Lawrence county, and judgment recovered thereon by Pendleton’s administrators, which judgment is the claim now sought to be enforced by the bill against the land. It is insisted that by this arrangement, the notes originally given by Joseph Pouns to Pendleton were discharged, and the land released from the lien which attached on the sale to Pouns, for their payment. Hence it is to be inferred from the position assumed by counsel, that the present claim can only be enforced against such interest as Sones may have in the land, and not against the interest of the heirs of Pouns. The [137] general correctness of this position cannot, of course, be questioned. But we apprehend that it will be found to have but little if any application to the facts of this case. Some time after the sale to Sones, the heirs of Pouns filed their bill against him, alleging that the sale of the land to him by Pendleton was null and void, and praying that the said contract might be cancelled, and the title to the land revested in' the said heirs. The vice-chancellor, upon the hearing of the cause, which stood upon pro confesso as to Sones, and upon an answer as to the heirs of Pendleton, decreed according to the prayer of the bill, declaring the sale of the land by Pendleton to Sones to be void, and that the heirs of Pouns should recover the land. This is briefly the case now before us for consideration, and we perceive no difficulty in disposing of it, according to well-settled rules of equity jurisprudence. It must be borne in mind, that Pendleton’s lien on the land was in full force at the date of the sale to Sones, who became his, Pendleton’s, debtor, in lieu of the heirs of Pouns, who though holding then the legal title to the land, held it, nevertheless, subject -to Pendle-ton’s vendor’s lien, which was never in fact released as to the land, but attached to it in the hands, of Sones, the subpur-chaser, just as it had existed on it, while in the hands of the heirs of Pouns, in virtue of their legal title, derived from the deed of Pendleton to their ancestor, Joseph Pouns, and by descent from him. If their land was illegally and fraudulently sold to Sones, and he in consequence thereof acquired no title, they of course cannot object to discharging those obligations, entered into by Sones, for the purpose of discharging the lien, which a court of equity treats as superior to their legal title, and for the purpose of discharging which lien, a court of equity would long since, in a proper case, have subjected the land, if no sale had been made to Sones. If he acquired no title under the sale, which they allege to be void, they cannot insist that he should pay their debt to Pendleton, no more than they could if he had contracted to pay the same amount directly to the heirs of Pouns, in consideration of the void sale of the land. When [138] they, say to Sones that he purchased under a void contract made with Pendleton, and therefore demand a surrender of the land that they may continue to enjoy it in virtue of their legal title, a court of equity will hold them as offering to discharge the obligations assumed by Sones to Pendleton on account of the lien, which bound the land both before and after the sale. They occupy no better position than they did before the land was sold by Pendleton. His sale may have been insufficient to pass their legal title to the purchaser, but did not in any manner affect his lien for the unpaid purchase-money. The complainants were not parties to the bill filed by the heirs of Pouns against the heirs of Pendleton and Sones, and are, therefore, in no manner bound by the decree in that cause. If the complainants had been parties they could, under the state of facts in this case, by their cross-bill, have set up and enforced their lien against the heirs of Pouns and Sones, and have enabled the chancellor to have done justice to all parties. But this was the fault of the complainants in that bill; the proper parties not having been made, the decree binds those only who were parties or privies. ■ It is next objected, that the notice given to those of the defendants who are non-residents by publication, is void for want of sufficient certainty. The complainants are described as “ adm’r. and adm’x.,” without naming the person of whose estate they are administrator and administratrix. We think this sufficient. The notice was definite and certain as to the defendants, and they were informed thereby that they were required to appear at a certain term of the court to answer the bill. Again, it is said that there was no service of process on some of the defendants who reside in Copiah county, and that the decree is, therefore, erroneous. We think this objection well taken, and that the decree for this error alone must be reversed. .It is true that the appeal is prosecuted only by one of the defendants, who was regularly served with process ; but we are clearly •of opinion that under the facts of this case he may take advantage of a want of service of process on a codefendantv The defendants are not jointly and severally liable for the amount of the decree, but are only liable as heirs, each accord [139] ing to his interest in the land of the ancestor. Complainants have no right to resort to the interest of five of the heirs and make their land pay the whole decree, and exempt the land of the others from liability. They must all contribute ratably, one as much as another. The rule would, doubtless, be different if the heirs were jointly and severally liable for the whole decree. If the land of any one be released, or not. made liable, a corresponding amount of the decree ought also to be released; as, for instance, if there be eight shares, represented by eight heirs, and only five of them be made liable, the complainants could only sell enough of the land to pay five eighths of their decree, and would be compelled to resort to other shares for the balance.' It is, however, said that the decree recites notice and service of process on the parties. This recital must be controlled by the facts as they appear from the record. The process is part of the record, and if it do not appear to have been served on the parties, or notice to have been given according to law by publication, the recital in the decree will not be sufficient, as the law has appointed no other mode of giving notice to defendants. The objection taken, thát nothing appears showing the appointment of a guardian ad litem to the minor defendants, can be obviated by having the appointment made in the court below, upon remanding the cause. Decree reversed, and cause remanded.