Simmons v. Tillery
| Decision Date | 30 September 1808 |
| Citation | 1 Tenn. 274 |
| Parties | SIMMONS v. TILLERY AND WILSON. |
| Court | Tennessee Circuit Court |
Equity.--The bill, and Wilson's answer, stated that John Carmack had an entry of 300 acres on Big Creek, in Hawkins county, made in the year 1779, which Wilson purchased; and for a full and valuable consideration sold 150 acres on the 1st day of September, 1787, to Joseph Bishop, his son-in-law, being the place whereon Bishop then lived; for which Wilson gave his bond to Bishop on the same day, to make a title as soon as a grant could be obtained. Bishop continued to hold possession of the land. Wilson obtained a grant for the 300 acres, dated the 29th of July, 1793. On the 10th of November, 1784, Wilson gave a bond to Jonathan Langdon, for 400 acres of land; judgment was obtained upon this bond in Hawkins county, in February, 1799, for about $1,200, for the benefit of the defendant Tillery. Garner also obtained a judgment against Wilson in the district of Mero, in May, 1801. Execution issued on both judgments, and the defendant, Tillery, became the purcvhaser of the land in dispute, under both judgments. Under the first, a purchase was made at sheriff's sale, in 1803, for the sum of five dollars; and in August, 1802, under the last, the defendant Tillery purchased for the sum of one hundred and one dollars. In consequence of the sale under the first judgment, a sheriff's deed was obtained, dated September 11, 1805.
The bill further charged that the plaintiff purchased the bond from Wilson to Bishop on the first day of January, 1801; that he took the bond with him, and applied to the defendant, Wilson, for a title; upon this application, Wilson complied with the bond by conveying to him 197 acres, being the place where Bishop lived; but as there had been no survey, it had been previously agreed by Wilson to convey all that part of the land which lay on the north side of the creek, more or less in discharge of the covenant. It turned out to be 197 acres; that he gave for the bond $1,200 and took possession from Bishop, which he has continued ever since.
An action of ejectment had been commenced by the defendant, Tillery, against the plaintiff, and judgment therein for the plaintiff--prayer for an injunction and relief.
The defendant, Tillery, in his answer, admits the judgments, executions, his purchase at sheriff's sale, and recovery on the sheriff's deed in ejectment; denies that he had any knowledge of this covenant to Bishop at the time he purchased, as charged in the bill. He does not know when Bishop took possession under the covenant. About the first of January, 1801, he was informed that Bishop was in possession, but as he was son-in-law to Wilson, he expected he was there by courtesy, and not by claim to the land he does not believe Bishop ever paid anything for the land; that Wilson once offered the same land, Bishop then living on it, in part of Langdon's judgment, which was his property. Bishop never pretended to hold against the judgment, and the plaintiff had offered to buy it of this defendant if he should hold it. Insists there is no transfer of the bond from Bishop to the plaintiff, and believes in reality the plaintiff purchased from Wilson, and not Bishop, after the judgment was obtained, but conceals it in order the better to prevent the judgment from overreaching his purchase. He does not believe the covenant covers the same land the deed calls for, one is for 150 acres, the other for 197 acres; nor does he believe the covenant is for part of the land called for in the grant; the first calls to lie on a branch of Big Creek, the latter on both sides of Big Creek.
It was further insisted by the answer, that, if there was such a bond, it ought not to affect the defendant, who was a purchaser at sheriff's sale for a valuable consideration without notice; and, at the time he purchased, believed he was getting a good title; that, in the year 1801, Wilson was indebted more than he was worth; he was insolvent, and the plaintiff, or any person, must have known that, under the circumstances of Wilson's embarrassment, any conveyance from him at that time would be considered fraudulent; particularly relies on there being no assignment of the bond to the plaintiff; on a deed from the sheriff; under Garner's judgment, dated September 11, 1805.
Absalom Looney, Michael Looney, Jesse M'Williams and William Payne proved among them that, about the time Wilson gave his bond to Bishop, he paid him two horses, which was understood to be the consideration. The price of land was then low, no money in the country, and what land was sold was for property; the price of the land appeared to be small, but at that time, and for a long time afterwards, Wilson was in no way embarrassed in his circumstances, and never was supposed to be declining in his affairs until after Langdon's judgment was obtained. Payne, one of the witnesses, said that he was not supposed to be insolvent until the year 1799.
Joseph Bishop was offered as a witness for the plaintiff,--this was objected to on the ground of interest. The Court permitted him to be sworn, as this was a question before the Court, and not a jury; they reserved to themselves the power of rejecting it if necessary, upon principles of law. He stated the covenant, payment of the two horses, that the land was cheap; he exchanged this land with young Samuel Wilson, his brother-in-law, giving up the bond to him, who, as he understood, immediately sold it to Richard Mitchell, and Mitchell to the plaintiff; the bond, as he understood, went with the sales. He had been living on it since 1787. Samuel Wilson, Jr., told him to give up the bond to the plaintiff; he did so, but never saw the covenant since he parted with it to Wilson till now.
The Court rejected this witness upon the ground that he might be liable for the consideration received by him in case the land were lost.a1
White and Williams argued for the plaintiff, and relied upon 1 Pow. Const. 313; 2 Pow. Const. 56-61; 1 Fonb. 343; 2 Fonb. 306; 1 Pow. Const. 297-302, 428.
Campbell, for defendant Tillery, said he should rely upon the following positions:--
1st. The proof is insufficient as to the payment of the consideration by Bishop.
2d. There is no testimony that the plaintiff claims under this bond execept Bishop's, and that is rejected by the Court.
3d. Admitting Bishop's testimony to have been received, it will not establish what became of the bond after he parted with it to young Samuel Wilson. What Mitchell said can not be noticed.
There is no proof how the plaintiff got this bond, nor what he gave for it. He must show that he was a purchaser for a valuable consideration, or he can not recover. 1 Fonb. 261 et seq. shows that this transaction would be fraudulent. The consideration given by Bishop was inadequate, and Wilson was at that time indebted more than he was worth; the bond to Langdon shows that. The consideration was colorable only, and there was an intention in Wilson to defraud when he gave the bond; consequently it is void as to creditors, either previous or subsequent. 1 Fonb. 267, &c. If a person covenant or article to convey land, it binds the conscience, but not the land. 2 Fonb. 359. Besides, there is a difference between such a bond as this and the articles spoken of in the books. A covenant to convey can not affect a creditor by judgment without notice.
There being no assignment on the bond is conclusive that the plaintiff does not claim under it. In fact there is no proof whatever that he does,--where proof must be in existence, and is not produced, it must always be presumed that the fact never existed.
He then proceeded to consider the case: 1st, as it respected the plaintiff; 2d, on the part of the defendant.
The description of the land in the deed made does not correspond with the bond; it ought not therefore to affect third persons, as the two instruments must stand independent of each other. Parol proof can not be received to correct them; the bond is for 150 acres of land, and deed for 197. Surely the bond, if a lien, can not extend to 197 acres; if so, it might extend to 1,000 acres, if Wilson had as much, and cover all his property from creditors. The specific boundaries of the 150 acres never were ascertained; they were uncertain, and for this uncertainty the whole is void.
When Wilson sold this land he had no right to it; the bill states an entry in the year 1779, but none is produced or proved, we must therefore consider the subject on the grant alone. This case steers clear of one where a person gives his bond for a specific piece of land, having a right to it; if this bond to Bishop was an honest transaction why did not Wilson make a title from 1793, when the grant issued till 1801? This shows decisively it was only intended at first to be colorable. Simmons, the plaintiff, being in possession, is no proof of a contract, or of itself to be taken as part-execution of a contract, unless one were proved. Let us next consider the relative title of the defendant upon which he recovered at law.
The bond to Langdon for 400 acres of land in value appeared equal to all Wilson ever was worth, or nearly so. It was given three years prior to Bishop's bond.
The plaintiff, being a purchaser, might be affected by notice of Wilson's circumstances when he purchased. Tillery could not, as he was a creditor, and was obliged to take such property as he could get.
The origin of our claim, the bond to Langdon, is several years prior to their pretended lien. Our lien, the judgment of 1799, is prior to the plaintiff's deed in 1801. The plaintiff can not say that he did not purchase of Wilson, for the deed states the consideration, $1,200, to have been received from the plaintiff and he is estopped to say otherwise.
It is a new case for a court to interfere against a purchaser and creditor in favor of a person who purchased of a debtor. The defendant has law and equity both on his...
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