Cordova v. Hood
Decision Date | 01 December 1872 |
Parties | CORDOVA v. HOOD |
Court | U.S. Supreme Court |
APPEAL from the Circuit Court for the Western District of Texas, on a decree dismissing a bill filed to enforce a vendor's lien. The case was thus:
On the 4th of March, 1859, B. G. Shields, by instrument of writing, 'bargained and sold to G. M. Hood' (both parties being of Texas) a tract of land in that State, described, 'for the sum of $27,000, to be paid by the said Hood as follows.' Certain drafts and notes to be given by Hood were then specified; among the notes one for $9000, payable at the Union Bank, New Orleans, April 9th, 1862. The deed ended with a covenant that 'on the completion of the payments before mentioned' Shields would warrant and defend the premises to Hood, his heirs and assigns, against all persons lawfully claiming or to claim them. In point of fact, when the papers came to be executed, the notes were signed not only by Hood, the purchaser, but also by his son, G. M. Hood, Jr. On the 1st of April, 1862, before the note that became due on the 9th matured, Hood, Sr., called on Shields and stated to him that he had some surplus cash with which he desired to pay a part of it off. Shields accordingly took his money, and a new note was executed for the balance; the old note being given up. The new note, like the old one had been, was made payable April 9th, 1862, and at the Union Bank, New Orleans. This new note shields afterwards (in the autumn of 1862) assigned to one Bartlett.
In May, 1863, Hood sold the land to two persons, named Scroggin and Hanna; and Bartlett having become bankrupt, his assignee in bankruptcy, one Cordova, now filed a bill in the court below against both the Hoods, Scroggin, and Hanna, to enforce the lien. The bill did not allege that the complainant had exhausted his remedy at law against Hood, the vendee of the land, who, or whose estate in point of fact, appeared to be solvent.
The Hoods let a decree pass pro confesso. Scroggin and Hanna set up in answer, or in argument, that all vendor's lien had been waived by taking Hood, Jr., as a party, who, not being interested, was a surety on the notes; that even if any lien had existed under or by virtue of the note of $9000, such lien was waived when that note was paid, as in law it was completely when it was surrendered; the transaction having been not a credit on an old debt, of so much cash paid, but an acceptance of cash and of a new debt, accompanied by an annihilation and extinction of the old one; that, at any rate, however all this might be as between Shields and Hood, they, Scroggin and Hanna, were purchasers, bon a fide and without notice of any lien; that further, if Shields, the vendor, might himself have enforced a lien against the land, had he continued to hold the note and debt, the right of enforcement was a right personal to him, and that it did not pass to Bartlett, his assignee, and as little certainly to Cordova, assignee in a second remove.
Shields, who was examined, thus testified:
'The note was traded to Bartlett, with the statement from me that it was secured by a vendor's lien on the land sold to Hood, Sr. I will further state that I believed at the time that Mr. Bartlett had special reference to that fact in the transaction, and that he felt that the note of G. M. Hood, Sr., to secure the remainder of the last payment for the land, with the right of the vendor's lien upon said land, was safer for him (Bartlett) than cotton, which he gave me for it; then liable at any moment to impressment.
Bartlett was also examined. He said:
Scroggin and Hanna were also both examined. They testified that Hood, Sr., was one of the wealthy men in Texas; that they supposed that the land had been sold to him on his personal responsibility; that with his own lips he declared to them that every dollar was paid on the land; that they had never heard of any lien. It appeared, however, on cross-examination that they had seen the record of the deed of March 4th, 1859, from Shields to Hood, before purchasing from Hood, and had had it examined by their professional adviser for their own 'protection.'
The court below confirmed the decree so far as the bill was confessed, but dismissed it as against Scroggin and Hanna. From that decree Cordova took this appeal.
Messrs. Conway Robinson, W. G. Hale, and R. T. Merrick, for the appellants; Mr. G. F. Moore, contra.
The appellees must be held to have had notice of whatever equities were...
To continue reading
Request your trial-
Kian v. Kefalogiannis
...... "The language of Mr. Justice Strong, in Cordova Hood, 17 Wall. 1 21 L.Ed. 587 , so often quoted with approbation by this court, is peculiarly appropriate to the present case. He said: `Whenever ......
-
Kian v. Kefalogiannis
......Justice Strong, in Cordova v. Hood, 17 Wall. 1 [21 L. Ed. 5S7], so often quoted with approbation by this court, is peculiarly appropriate to the present case. He said: ......
-
Guinn v. Church of Christ of Collinsville
...1461 [1938]. "Waiver" had its origin in civil law before Justice Black in Johnson transplanted it into criminal law. In Cordova v. Hood, 84 U.S. 1, 21 L.Ed. 587 [1872], the Court said that "waiver" is a matter of intention as well as action. The party invoking waiver as a bar is required to......
-
International Broth. of Teamsters, Chauffeurs, Warehousemen & Helpers of America-Airline Div. and Teamsters Local 19 v. Southwest Airlines Co.
...such waiver assumes the burden of proof as to the knowledge of the party making the waiver"); see also, e.g., Cordova v. Hood, 84 U.S. (17 Wall.) 1, 21 L.Ed. 587, 589 (1873) ("Waiver is a thing of intention as well as of In the labor context, voluntary relinquishment of the statutory right ......
-
Indiana stocks.
...1.26 (2.38) Tower Financial Corp. TOFC 11.77 11.91 (1.18) Union Acceptance UACA 4.16 5.00 (16.80) Union Community Bancorp UCBC 14.99 13.90 7.84 US 1 Industries USOO 0.35 0.70 (50.00) Vectren Corp. WC 25.10 23.98 4.67 Wabash National Corp WNC 10.00 7.80 28.21 WFI Industries WFILF 4.06 1.91 1......