Graham v. Tankersley , 15 Ala. 634 ( 1849 )

CHILTON, J.

1. It is objected, that the bill in this case contains no averments as to the insolvency of Mrs. McNeill, the vendor, to give the court jurisdiction. This objection is not sustained by the record. The bill avers, that she is in very slender circumstances, and unable to respond in damages which the complainant may recover in an action at law upon her covenant of warranty. Besides this, she is charged to reside beyond the jurisdiction of the court. Several decisions of this court, we think, very clearly show, such averments are sufficient to authorize the vendor to come into chancery, to enjoin the collection of the purchase money for land, the title to which is. in a stranger. Greggs v. Woodruff, 14 Ala. Rep. 9; Cullum v. Mobile Bank, 4 ib. 2; 8 Dana, 164; 6 ib. 32; Hunter v. O’Neal, 12 Ala. Rep. 37.

Mrs. McNeill admits her inability to .respond in damages to the complainant for a failure of title, and she certainly knows more about her own condition as to solvency than her brothers, who testify upon the subject, and who mistake the number of her slaves. Under the facts presented by the record, we think the jurisdiction of the court, so far as it depends upon the inability of the vendor to respond upon her covenant, sufficient to warrant the interposition of the court to prevent the complainant being driven without the state to seek, at most, a doubtful remedy against his vendor.'

2.' But it is insisted that Tankersley cannot resort to a court of equity to seek relief against the remaining note for the purchase money, because, when sued, he failed to-notify his vendor of the pendency of such suit. This position cannot be maintained. In order to conclude Mrs. McNeill by the judgment which was rendered in favor of the heirs of Green against Tankersley, she must have been notified of the pendency of the suit, and have been required to defend. This not having been done, the judgment of recovery against Tankersley, does not conclude her in any way, and she may make, as against him, any defence which she could have set' up in bar of a recovery of the land, and damages from him. It is not, however, pretended that she had any available defence to the action. On the contrary, it is clearly shown that the heirs of Green have the legal title, derived directly by descent through their ancestor, to whom a patent had issued from the government.

3. The notice of the pendency of the suit, given to Alexander Graham, was insufficient to charge Mrs. McNeill. Graham was her agent “ to receive and collect the note,” but it is very clear, that this gave him no authority to bind her in respect to the defence of a suit brought against her vendee. Were such the law, every attorney who receives a note for collection, would be converted into a general agent of the payee, in respect to all matters connected with its consideration. The authority in this case was conferred for a specific purpose, and limited to a particular object. It cannot be extended beyond that object, so as to embrace matters clearly not within the contemplation of the parties at the time it was conferred. Story on Agency, § 68 to 71; Wallace v. Br. B’k Mobile, 1 Ala. R. 565; Wood v. McCain, 7 ib. 800; Scarborough v. Reynolds, 12 ib. 252.

4. If is insisted, however, that the complainant below was not entitled to relief, because it does not sufficiently appear the note on Register, Terry and Hawthorn, upon which the judgment sought to be enjoined, was rendered, was given in consideration of the land from which the complainant was evicted, but was given for other lands purchased at the same time, from Zachariah Graham. We have carefully examined the testimony, and without incorporating it in this opinion, will state, that it fully sustains the bill, as to the consideration of the indorsement upon the note. In the first place, it is highly improbable the party would fully pay for land to which the title was confessedly doubtful, and risk his indemnity against his non-resident vendor, on her covenant of warranty: and then, Hawthorn positively swears that he was present when Tankersley indorsed the note; that it was done at his house; that Tankersley refused to pay for fraction C, (the land in dispute,) until he should be indemnified against Green’s claim. The testimony of this witness is corroborated by Towles, in an important part of it, who proves, that Alexander Graham, told him the note was given for fraction C. Add to this the correspondence of the note with the price of the land, and we think the conclusion cannot well be resisted, that the note in controversy was indorsed by Tankersley, in consideration of said fraction G. That in speaking of the note, Tankersley may have stated to the witness, Overstreet, that the same was indorsed for the land he had bought of the Grahams, is a declaration which can have little or no weight as proof, when we consider the Grahams had taken part in the negotiation, and that Tankersley may have looked upon Alexander, who, according to his admission in his answer, was present, and exhibited the title papers, and did some of the talking, as the agent of his sister, Mrs. McNeill. Neither do we think the effort successful, to impeach the testimony of Hawthorn, from the fact, that in a previous deposition, he had described the fraction as designated by the letter G, instead of G. His attention was not called to the apparent discrepancy, upon his examination, so as to afford him an opportunity of explaining, and the land is otherwise identified as the same, being the fraction for which Green was asserting an adverse claim.

5. The cross bill in this case was properly dismissed. It is in direct conflict with the answer of the party filing it, and proceeds upon the ground of the truth of the allegations of the bill in respect to the consideration of the indorsement of the note, which the answer denies. The plaintiff in the cross bill cannot be allowed to contradict his answer in the original suit. 3 Dan. Ch. Pr. 1746; Savage v. Carter, 9 Dana, 414; Hudson v. Hudson, 3 Randolph, 117. His answer, which must be considered true as against himself, destroys the equity he asserts by his cross bill. If, however, we were mistaken in this view, the plaintiffs in the cross bill are not entitled to the relief which they seek, in as much as its allegations as to the purchase, or agreement to purchase by Tankersley, of the land to which the title has failed, are denied by the answer, and disproved by Andrews. It may also be added, that we see no reason why the matter set up in the cross bill, may not be insisted on by way of answer. The proper-course would have been, if the defendants had mistaken the facts as to the consideration of the indorsement on the note on T. R. and H. for them to have obtained leave to amend, admiting the allegations of the bill, and setting up the supplemental matter, as a reason why the complainant should not enjoin more of the note than would repay him the amount he had given on the purchase of the land from the estate of Green, with the expense of defending the suit, &c. This they failed to do, but litigated with the complainant, some fourteen months, the question, whether the note was given for the land, and doubtless finding, after the proof was taken, that the allegations of the bill were susceptible of proof, and that they must fail ill this defence, they exhibit a cross bill, praying to be relieved as to all except the price paid for the land, in the event that Tankersley should succeed in establishing the falsity of their answers. And thus, after trying one defence, and failing, they desire to set up another, entirely the opposite of the first. Willet v. Fayerweather, 1 Bar. S. C. Rep. 72.

It is the settled rule, that when the defendant has mistaken the facts in his original answer, he cannot contravene his admissions otherwise than by moving to correct it, either by amendment or supplemental answer. He cannot do so by cross bill. 2 Dan. Ch. Pr. 916, and authorities cited. The same rule must apply, where he affirms by his cross bill what he denies in his answer.

6. The cross bill being out of the case, there remains no allegation in the pleading, putting in issue the subsequent purchase of the land by Tankers ley, and as the rule requires that the decree must be founded on the allegations of the pleadings, as well as the proof, it follows that the chancellor properly disregarded the purchase made by Tankersley after he had filed his bill.. See Carneal v. Banks, 10 Wheat. 181; Gregory v. Power, 3 Litt. 339; Carson v. Gibson, 3 Ala. R. 421; McKinley v. Irvine, 13 ib. 681. This view is conclusive of the case. There is no controversy about the fact, that the title to the land had wholly failed, and that Green’s heirs had received it of Tankersley before he filed his bill. He avers that his improvements made on the land are worth more than the rents, from the time of his purchase up to the issuance of the patent to Green. This averment is admitted by the default of Mrs. McNeill, and not denied by the other defendants. Under these circumstances, we think the chancellor correctly enjoined the collection of the note out of the complainant below, and that there was no necessity for a reference, to ascertain the amount of the rents, and value of the improvements.

It is unnecessary to state what would have been our conclusion had the subsequent purchase of the land by Tankersley been properly presented before us. We are not at all sure, that the defendants have been injured by their failure properly to present it, since they were advised of Green’s claim long before the bill was filed, and eight months elapsed after it was filed, before Tankersley, purchased the land. During all this period no steps were taken to perfect his title by the defendants. But we may not look into these matters. Let the decree be affirmed.