Hall v. Maccubin , 6 G. & J. 107 ( 1834 )

Archer, J.,

delivered the opinion of the court.

This cause must be remanded to the court of Chancery for the want of parties. Nicholas Brice, the assignee of the bond given by Matthews for the purchase money, may have a lien for the unpaid balance of his bond; and in the event of the personal property proving insufficient to pay the complainant’s claim, the land would have to be sold for the purpose of paying the purchase money. In this point of view the interest of Brice might be affected by the decree.

We conceive that the evidence adduced by the complainant, is abundant to show that all the land over three hundred acres, was to be paid for at the same rate at which the three hundred acres was purchased. For such excess, the complainants would have clearly a lien for the purchase money, and could recover it by a sale of the land, unless the administrator has assets, wherewith to discharge and pay the purchase money.

The existence of this lien however cannot be definitively determined, until the bond held by Brice shall be exhibited in Chancery. Unless there be something in the structure of the bond which negatives the lien, it would have to be enforced upon an insufficiency of assets.

On the supposition that the bond is a mere obligation for the payment of money, without reciting the contract of sale, there could be no possible legal objection to the admissibility of the evidence, in relation to the excess of the land above three hundred acres. It is in this light we have supposed it to exist. In that view, the introduction of the parol evidence would not affect in any manner the contract, as evidenced by the bond of conveyance, and bond for the purchase money, but being evidence of a substantive and independent contract, its admissibility could not be met by any legal objection.

The bill should be amended so as to charge assets in the hands of the administrator, and Nicholas Brice should be made a party; and the bond assigned to Brice should be brought into the court of Chancery, or its contents proven, if lost, to do effectual justice to the parties.

REMANDED TO THE COURT OF CHANCERY.