Burton v. Wells

Fishes, J.,' delivéred the opinion of the court. . The defendant in error sued the plaintiff in error, before a justice of the .peace of Kemper county, upon a claim for $50, and the justice rendering judgment for the defendant, in-the action before him, the plaintiff prosecuted his appeal to the Circuit Court of said county, where judgment was' rendered for the plaintiff below, and from which judgment the cause. is brought into this court by writ of error. The facts are as follows:— Burton, the defendant below, and Wells, the plaintiff, purchased jointly a tract of land from one Rowe, and paid each, on account of the purchase, the sum of $50; Rowe, at the same time, made them a deed for the land, and took the notes of each party for the balance of the purchase money-. This deed not having been recorded, Burton afterwards proposed to Rowe, to make to him, (Burton,) a deed for the entire tract of land ; Rowe agreed to do so, if Wells would consent to the arrangement: Wells being approached on the subject; consented, on condition that Burton would take up the notes given by Wells, and would pay back to Rowe, for the benefit of Wells, the $50 which had been paid. This answer was communicated to Burton,'who did not agree to pay back the $50, but only to take up Wells’s notes. Rowe, however, made the deed as requested by Burton, which deed he then received. It is not shown by the evidence what became of the deed which had been previously made to Burton and Wells. Upon this state of facts, the question for decision is, whether Burton’s taking the deed from Rowe, knowing, at the same time, the terms prescribed by Wells, as the conditions upon which he, (Burton,) might take the deed to himself, must be understood as agreeing to those terms. It is true, that Burton said that he would not pay back to Wells the $50 which he had paid; and it maybe conceded, that as a general rule, the law will not imply a promise, where the party has refused to make an express promise, in regard to the same matter. But here, the promise to pay the $50 was the condition, or at least, part of the condition, upon which Wells agreed that the deed might be made to Burton. His right to the deed depended upon his willingness to perform the condition, and if he refused to perform ,the condition, he must be understood, at the [692] same time, as refusing to receive tbe deed. And the converse of this proposition must be held as equally true: if he received the deed, he received it with the condition annexed by Wells; that he, (Burton,) should pay back the $50. He must be understood either as wholly agreeing, or disagreeing, to the condition. If wholly disagreeing, he of course, declined receiving the deed; and if wholly agreeing, he undertook to perform the conditions annexed by Wells. But it is said, that the title had already vested in Burton and Wells, by the joint deed, which had been previously made by Rowe, and that Wells’s interest could not, by merely returning the deed to Rowe, or by its destruction or cancellation, be divested; and that there is, therefore, no consideration for the promise. It is true, that a title having once vested under a deed, cannot be divested merely by destroying the deed, or returning it to the vendor. But this point is not material in this case. Burton, by taking the deed to himself, under the circumstances, might have it in his power to sell the land to an innocent purchaser, or to gain credit upon the faith of it; and in this way reap a benefit from the transaction. Wells, on the contrary, having surrendered his evidence of title, would not have it in his power to sell the land, or to reap any benefit from what might be treated as a naked legal title, unaccompanied by either possession, or evidence of such title. It is also said, that’there is no evidence that the joint deed was returned to Rowe. The presumption may be indulged, that when he made the deed to Burton, he, (Rowe,) took up the first deed, and that Burton had such deed ready to deliver up, on receiving the deed to himself. Upon the whole case, we are satisfied that there is no error in the action of the court below. Judgment aflirmed.