Toney v. Moore , 4 Stew. & P. 347 ( 1833 )

Taylor, J.

The hill in tills case charges, that the complainant purchased tho lot, which, is the subject of litigation, of Palmer, who acted as the agent of Maxwell, in tho calo, Lr the price of three hundred and twonty-dvc dollars, the whole of which had boon pihl. Palmer, in his answer, alleges that the complainant bargained for only half die lot, (I understand him to mean an undivided half,) for the price of one hundred and smy-íwo and a 1 aif dollars, which had never been paid; and that he, (Palmer) had subsequently purchased the whole lot, and got a conveyanecto himself.

The. first question presented, is, whether the complainant had made the payment'1

There is no direct evidence as to this matter; yet it is proved that from about the time of the purchase, the complainant had uninterrupted possession, to the time the bill was filed, which was several years; that after the deed was made to Palmer, he made no exertion to get pus jession of the property, except while the complainant was from home, on his trip to New Orleans, and while the. report prevailed, that he was dead; and the possession then obtained, was relinquished immediately after the complainant returned home.

Tho circumstance that Palmer obtained a conveyance, does not prove any thing. Maxwell had never obtained a deed — he held Godleyb bend for a title, and when lie gave a power of attorney to Palmer, to sell, lie delivered tlie 'bond to him, and authorised 'Godley to make the title, pursuant to any directions which Palmer might give. He, therefore, had it perfectly in his- power, .to obtain a title, whether he had purchased or not.

The reason ascribed by Godley, in his answer, for making the title to Palmer was, that he field the title bond; and he lias produced no proof of his ever having made a purchase. So far ns Palmer is concerned, then, who only acted as an agent, in making the sale to Moore, there is sufficient evidence to show a compliance by Moore, with his contract; and there is nothing to sustain the allegation, by Palmer, which is not responsive to any allegation of the bill, that he had purchased the land.

It appears, by the bill, that Palmer proposed a union of interests to the complainant, which the complainant alleges he acceded to, on condition Palmer would pay half the purchase money, and expenses of building; which he never did, and the partnership did not take effect. Palmer alleges that the complainant proposed this partnership to him, but whether before the house was begun, or after, fie is not confident; and that he acceded to the proposition.

Here is a strong circumstance, to show that Moore must have purchased the whole lot. All the parties and witnesses agree that the house covered the whole front of the lot. If Moore only purchased half, by what right, or upon what pretence, could he proceed to build upon the whole I And surely, if he had done so, the fact would have been of too extraordinary a character, for Palmer to have forgotten whether hie interest commenced before or after.

Tilia conversation,. and partial agreement for a partnership, doubtless gave rise to the idea which prevailed with some, that such a joint-interest existed. To one of the witnesses, however, Palmer positively declared, that there was no such joint interest. Moore made ail the contracts for the building, and superintended it himself, entirely, although Palmer lived within a hundred and fifty yards, and was often near the house, in passing along the street.

His acts, while Moore was absent, prove his intention to commit a. fraud; especially Ids contract for the plastering and course with the other workmen— particularly in soliciting Barclay to bring suit against him, with the evident intention of having the house levied on by execution and sold. All the circumstances, therefore, repel the idea of a joint interest.

But, it is contended, that the proof shows, Moore only claimed title to an undivided moiety of the lot, at the time of the slieriiPs sale, at which Toney became the purchaser.

The bill charges .expressly, that the complainant prohibited the sale, alleging that the whole property in the lot was his. And the answer of Toney, as expressly admits this to.be true. The deposition of Petit, the deputy sheriff, who. sold the property, states that the complainant frequently and openly claimed half the lot, &c.; hut this can not prevail against a positive.admission of the answer.

If has not been contended, that this is not a case in which Chancery can take jurisdiction, and decree a specific performance of the parol contract, provided the foregoing ■views are correct; and it would follow, upon the main points in the cause, that Mccrc is entitled to an aiiirmar.ee of the decree. The preof, however, shows that Barclay, received, cut of the money paid by Toney, the balance of the sum, which Moore owed him, for work done upon the house; but it docs not appear what that sum was. It. is but equitable that this sum should be refunded by Moore.

. The decree of the Circuit Court is, therefore, reversed, and the cause is remanded, that a reference may be made to the master, to ascertain the amount of the debt of Moore to Barclay, which ivas paid out of the proceeds of the sale, by the sheriff, to Tc-ney, excluding all the costs of the suit of Barclay against Palmer, and those arising upon the execution and sale of the property: and that the Circuit Court may decree, that Moore shall pay this amount to Te~ ney, at such time as to that Court shall seem right; that, thereupon, the sheriff’s deed to Toney, be delivered up, to be cancelled, and Palmer execute a conveyance to Moore, in fee simple: and that the judgment at law’, recovered by Toney against Moore, except for the costs, be perpetually enjoined : that Mccrc pay the costs arising in the Circuit Court; and, in ibis case, as there is reason to believe the point on which the case is reversed was not made below, (hat each party pay half the costs of this Court.