Graham v. M'Campbell
| Decision Date | 30 April 1838 |
| Citation | 19 Tenn. 52 |
| Parties | GRAHAM v. M'CAMPBELL. |
| Court | Tennessee Supreme Court |
John M'Iver sold to James M'Campbell, on the 14th of August, 1826, four hundred and sixty-four acres of land, and to secure the purchase-money M'Campbell executed his three several bills single, each for $773.33 1-3, payable on the 7th of September, in the year 1827, 1828, and 1829. And a title bond was executed to M'Campbell by M'Iver, conditioned that, if after payment of the bills, he, his heirs, &c., should make M'Campbell, his heirs, &c., a deed in fee-simple with general warranty, then the obligation of the bond to be void, &c. In the spring of 1827, M'Campbell took possession of the land, and continued to hold and enjoy it as purchaser.
M'Iver in his life had assigned the first of these bills single to Jesse Blackfan, who assigned it to M'Donald and Ridgely, who recovered judgment against M'Campbell in Roane County Circuit Court on the 30th of January, 1830, for $887.88. The second was assigned by M'Iver to Charles I. Love, and by him to Isaac H. Lanier, who, at the same session of Roane Circuit Court, recovered judgment thereon against M'Campbell for $837.75. The third remained in M'Iver's hands at his death. All of them being unpaid, and executions having been issued upon the judgments, and returned, nulla bona, and M'Campbell having no property out of which the money could be made; Graham, as administrator of M'Iver, together with his heirs-at-law and the assignees of the bills, joined in a bill in the Chancery Court at Paris, stating the above facts, and praying for an account of the principal and interest due for the purchase-money; that the contract might be specially executed, or that the land might be sold to pay the purchase-money.
M'Campbell's answer admitted the above facts, but insisted that the assignees of the securities given for the purchase-money were not entitled to the relief prayed for in the bill. A replication was filed, and the cause was heard upon the bill, answer, replication and exhibits, by Chancellor Brown, on the 20th of September, 1837 who dismissed the bill as to the assignees; and as to the security which had not been assigned by the intestate in his lifetime, ordered an account, and that the land should be sold to satisfy it. The complainants appealed in error.
George S. Yerger, for the complainants, said: The contract is entire in this case, and the vendor can not have a specific performance for a part, his only remedy is to have the contract executed entirely, and in such case, if the notes are assigned, the assignees must be either complainants or defendants.
The lien for the purchase money attaches as a trust, whether the land be actually conveyed or only contracted to be; 2 Story's Eq. sec. 1218; and it may be enforced in favor of third persons claiming under the vendor, or rather they will be subrogated to his rights; 2 Story's Equity, 1227. Selby v. Selby, 4 Russell, 336; Eskridge v. McClure, 2 Yerger, 84; that if a creditor would be substituted when the vendor's personal estate is exhausted, and this by operation of law, much more would an assignee of the identical debt; that the remedy in cases of specific performance is mutual, 2 Story's Eq. sec 790; now if the heirs of M'Iver had sued for the land, and M'Campbell wanted a specific performance, he would have to pay all the money due, and make all the assignees parties; that a mere assignment of part of the consideration is not a ?? escission of the contract, or a bar to a specific performance; that the debt is the principal thing, and the assignment of the debt draws after it the property as incident thereto, 11 Johnson, 538; 2 Powell on Mortgages, 966, note 1; 2 Day, 374; Duchess of Buccleugh v. Hoare, 4 Madd. 467; 3 Powell, 1028, note; Martin v. Mowlin, 2 Burrow, 969; 3 Ves. & Beame, 49; 1 Johnson, 591; 2 Powell on Mortgages, 429, note T. Claiborne v. Crockett, 3 Yerger, is a wholly distinct case from this; there Brooks, the party who sold, had the legal title, he conveyed by direction of Hicks to Claiborne for a valuable consideration. Claiborne had no notice that any of the purchase-money was due, and as against Claiborne the assignment of the note was an extinguishment of the lien; that Gann v. Chester and Blair, 5 Yerger, was a conveyance absolute. The notes were assigned, and the vendor mortgaged the property without notice to the mortgagee, who is to be regarded as a purchaser for a valuable consideration without notice.
Where there is a bond, it is a trust coupled with a lien; when a conveyance, it is simply a lien.
Cook, for the defendant, contended that the lien was gone so soon as the notes were assigned, and to this point that the case of Claiborne v. Crockett is a direct authority; 3 Yerger, 27. That was the case of a sale by a bond for title, and is in every particular like the present case. The cause was not decided on the ground that Claiborne was a purchaser, but on the ground that the lien was lost by assignment to Crockett. Gann v. Chester is also to the same effect, though the point is not directly decided; 5 Yerger, 205.
But it is said this is a case for specific performance, and therefore the whole consideration must be paid.
This is begging the question. It is admitted that so far as M'Iver's representatives are concerned, that is as to the last note, it would have to be paid. But unless they were fixed as indorsers they have no interest in the other notes. They could not resist a specific performance by M'Campbell by alleging that these notes are not paid. The answer to such a defence would be: “You have no interest in that matter, you are not liable for the notes.” They now constitute a mere personal demand against M'Campbell, and have no connection with the land.
But this is emphatically a bill to subject the land to the payment of the notes. We ask no relief, but stand on our rights, legal and equitable.Turley, J., delivered the opinion of the Court.
The only question presented for consideration in this case, is...
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