McMath v. Johnson , 41 Miss. 439 ( 1867 )

Ellett, J.,

delivered the opinion of the court.

Johnson sued McMath, in March, 1866, on a sealed note for $2,000, dated November 20, 1856, made by McMath, payable to Martha Ann Lenville or bearer, and due January 1, 1853, of which plaintiff was the legal bearer and owner ; and also on a due bill, given by defendant to plaintiff, dated December 21, 1863, for $80.19.

The defendant pleaded four pleas.

The first plea alleged, as the consideration of the instruments sued on, that on the 20th of November, 1856, the defendant contracted to purchase from E. Lenville, certain land, slaves, stock, &c., for the sum of $14,000, which sum was secured by seven bonds of the defendant for $2,000 each, of that date, and due January 1, 1858-9-60-61-62-63 and 64, of which the bond sued on was one, and was made payable to Martha A. Lenville, a daughter of E. Lenville, by his direction, as a gift by him to her. That the said E. Lenville, on the same date, as the consideration of said bonds, executed and delivered to defendant his bond, in the penalty of $28,000, conditioned that ho would make a warranty title in fee simple to said land, slaves, &c., so soon as the said defendant should pay said notes or bonds, as they fell due. That defendant has paid all the said notes or bonds, except three, to wit: the one now sued on, and those due respectively in 1863 and 1864, and except also the sum of $80.19, parcel of one of the other bonds, and for which the one bill sued on was given; and has also made partial payments on the others, making, in all, payments of $8,349.13, and leaving a balance of $5,650.87 of the principal sum unpaid. That the said slaves were estimated in said sale, and were worth over $10,000, which greatly exceeds the balance now due of the principal, together with the sum of $1,300, the value of one .of the slaves which was sold by defendant with the consent of E. Lenville. And the plea further avers, that the said E. Len-ville did not, and has not, made a good warranty title-to said slaves to the defendant, nor can he do so, nor has any other person made such title for said Lenville. And the plea states that Johnson, the plaintiff, became the holder of said bill single after it had become due and payable by assignment from the payee.

The second plea is similar to the first, except that it contains-the further averments that said slaves were all in Carroll county, in this State, on the 1st of January, 1863, and so remained until after the 21st of August, 1865, and that they were emancipated by the action of the Federal government on the 1st of January, 1863, which emancipation was ratified and confirmed by this State, on the 21st of August, 1865. And that, since the last tenn of the court, defendant had tendered to plaintiff the whole' amount of his indebtedness on said note and bond, and on the two other bonds not paid as before stated, and demanded from him a title to said slaves, and offered to pay said balance if he would make said title; and that he made the same tender, offer and demand, of the said Lenville,the holder of the bond due on 1st January, 1862, and to the attorney of the owner of the bond due 1st January, 1864; but neither of them would or could make a title to said slaves, but wholly failed to do so; and that E. Lenville has been dead for several years, and has no administrator, and defendant could not make the same tender to him.

The third plea, as to the bond of $2,000, alleges that plaintiff is not the lawful holder thereof, but the same is the property of the payee, now Mrs. Crayton, and that the same was assigned and delivered to plaintiff by her husband, on the 8th of Jan-nary, 1863, in consideration of a negro, then sold by plaintiff to Crayton, which negro was then a resident of said county of Carroll, and in further consideration of the sum of $400 then and there paid in Confederate treasury notes, the circulation of which was illegal, and that the assignment was therefore void.

The fourth plea, to the said bond of $2,000, assails the validity of the assignment of the note, on the ground that the same was made in consideration of a sale of a negro in said county and State, after the first of January, 1863, which negro had been a slave, but was then a freedman, under the laws of Congress and the proclamations of the President of the United States, and that the assignment was therefore void.

These pleas were all demurred to by the plaintiff and the demurrers were sustained, and final judgment given for the plaintiff, the defendant refusing to plead over. The action of the court on these demurrers is assigned for error.

It is insisted on the part of the .plaintiff below, that the covenants of the defendant to pay the purchase-money in seven annual instalments, and the covenant of Lenville, the vendor, to make title, are mutual and independent covenants, and that consequently the failure or inability of the vendor to make title, cannot be set up by the vendee as a defence at law against the payment of the purchase-money. On the other hand, it is insisted for the defendant below, that there is a distinction between cases of default on the part of a vendor able to convey, but failing to do it, and defaults of a vendor, where he has no capacity to convey for want of title, and that none of the instalments can be collected when there is a want of title in the vendor.

This question has been frequently before this court, and it is to be regretted that there exists an apparent want of uniformity in the decisions. It first arose in the case of Gibson v. Newman, 1 Howard, 341, and appears to have been well argued, and carefully considered by the court. The purchase-money of a lot of ground was in that case agreed to be paid in three annual instalments. No deed was executed, but the vendor promised to make a good title. It did not appear whether this promise was in writing, nor was any time stated when the title was to be made, but tbe court assumed that it was to be done when tbe last payment became due. The suit was brought to recover the last two instalments, the first having been paid, and tbe plea alleged a readiness to pay, a demand of title, and a refusal by the vendor to make it. The opinion of the court, delivered by Chief-Justice Sharkey, contains a very satisfactory exposition of the principles of law applicable to such cases. It is held to be immaterial whether the vendor has title or not, at the time of the sale, and that it is sufficient if he is prepared to make the title at the time when he lias contracted to do so. The general principle stated in the note of Sergeant Williams to the case of Pordage v. Cole, 1 Saund. Rep. 319, note 4, that, “if a day be appointed for the payment of money, or a part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such other act, before performance; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent; and that it is so when no time is fixed for the performance of that which is the consideration of the money or other act,” is cited and approved by the court, and it is held that an agreement to pay by instalments, or at different times, will make the covenants mutual and independent, as by so doing the party has manifested a willingness to rely on the covenant or promise of the other contracting party for title or performance.

The subject was again carefully re-examined in the case of Coleman v. Rowe, 5 How. 460, and the case of Gibson v. Newman was re-affirmed. The contract was to pay part of the purchase-money in cash, and the residue in two ecpal annual instalments, and a bond was given for the title. After a review of the authorities, the conclusion is stated, that the contract to pay the money was independent of the covenant of the other party to make a title. “ He (the vendee), it is said, agreed to pay the money at all events, and relied upon the covenants in the bond for title.” In both these cases, the defence relied on tbe allegation that tbe vendor had no title, and was unable to convey.

Tbe same question came again before tbe court in tbe case of Clopton v. Bolton, 23 Miss. 78, which was an action on two writings obligatory, payable twelve and twenty-four months after date, given for tbe purchase of a tract of land. Tbe defendant pleaded that fact, and that the plaintiff, at tbe time of tbe contract, executed a bond to make title when tbe purchase-money should be fully paid; and that tbe plaintiff did not, before tbe bringing of this suit, tender a deed to tbe defendant for tbe land. The court expressly reaffirm tbe cases of Gibson v. Newman and Coleman v. Rowe, and bold that, as on tbe one part there were instruments for tbe payment of tbe purchase-money at several different periods, and on tbe other, an obligation to make title on full payment of the purchase-money, it is clear, beyond doubt, that the covenants were intended to be independent, and that tbe failure to tender tbe deed constitutes no bar to the action.

It is to be observed, that, where the covenants are dependent, the party seeking to enforce performance by tbe other, must first perform, or tender and offer to perform, bis own part of the agreement, and demand performance by the other party, before he can bring any action, at law or in equity, against him. It is not necessary, in order to defeat such an action, that tbe defendant should have tendered performance on his part, nor will such tender make bis case any stronger before tbe court. It is sufficient, in all such cases, for the defendant to show that the covenant sued on was dependent upon another covenant to be performed by tbe plaintiff, and this will throw upon tbe plaintiff tbe burden of proving that be performed, or offered to perform, bis own covenant before the commencement of tbe action, for, without such proof, tbe defendant was in no default, and no cause of action bad accrued.

And if tbe covenants are independent, then each party relies on the covenants of the other party; no tender or offer of performance is required of either, before resorting to an action; and neither can defeat the action of tbe other by showing a previous tender or offer of performance on Ms part, and demand of performance by tbe party suing. Cbitty on Contracts, 809, 810.

This constitutes tbe main, if not tbe only distinction between dependent and independent covenants, and is fully recognized in all the decisions above quoted; and it is not at all affected by the consideration whether the party contracting is able to perform or convey, or whether, being able, he merely refuses to do so.

The cases cited would seem to be sufficient to settle the law of this State on the subject, but two decisions are relied on as establishing a different rule. The first is that of Peques v. Mosby, 7 S. & M. 340, in which the purchase-money was payable in two annual instalments, and a bond was given for title when the last note should be paid. The court below was asked to instruct the jury that the covenants were independent, and one of the instructions was in the very language of the court in the case of Gibson v. Newman. The instructions were refused, and the judgment was affirmed by this court. All that is said .by the court in the opinion is this : “ The instructions asked for and refused, assert the proposition that the right to enforce payment is distinct and independent from the ability to make title, and hence the want of title cannot be used as a defence. These charges were properly withheld. Courts will construe covenants to be dependent, unless a contrary intention clearly appears. A party is not thus forced to pay out his money, unless he can get that for which he stipulated.”

The facts of this case are not distinguishable from those in the cases of Gibson v. Newman, and Coleman v. Rowe. In all of them the suit was brought after the maturity of the last instalment of the purchase-money, and in all, the inability of the vendor to make the title was relied on by the defence. But in the last case the distinction drawn in the two former cases does not occur to have been adverted to, to wit, that the fact of the purchase-money being made payable by instalments, is regarded as conclusive proof of an intention that the covenants are to be independent; and the subsequent emphatic reaffirmanee of this rule in the ease of Clopton v. Bolton shows that there has been no intention at any time to disturb it. So far as the case of Peques v. Mosby is to be considered as an infringement upon the general principle so clearly established, it has not been followed, and we do not feel inclined now to return to it.

Similar remarks are applicable to the case of Feemster v. May, 13 S. & M. 275. That was an action upon the last of a series of notes given for the purchase-money of a tract of land, and there was a bond to make title as soon as the notes should be fully paid. The ruling of tile court upon these facts is, that “ where no deed has been executed, but only a bond given for title, the covenants are dependent, and the party cannot be forced to part with his money until the vendor is ready to make title.” This case seems to go upon a different ground from the ease of Peques v. Mosby, and to be made to depend upon the fact that a bond was given for title, not upon the presumed intention of the parties; and it equally overlooks the important distinction already adverted to.

There are two other decisions reported in 3 Howard, to wit: Leftwich v. Coleman, and Rector v. Price, both of which recognize the rule of the independence of the covenants when the purchase-money is payable by instalments. Such was the fact in both cases, and although some of the expressions used by the court might seem to extend the rule beyond that limit, yet it is well settled that the general language employed in an opinion is to be restricted in its application to the facts of the case.

It is expressly declared in Clopton v. Bolton, that the case of Wadlington v. Hill (10 S. & M. 560) was not intended in the slightest degree to shake the decisions in Gibson v. Newman and Coleman v. Rowe, and that there is no repugnancy or contradiction between them. In Mobley v. Keys (13 S. & M. 677), cited and relied on by the plaintiff in error, the purchase-money was not payable in instalments. There was but one note, and the bond was given for title to be made as soon as the money should be paid, and these agreements were very properly held to be dependent.

Adhering as we do to the doctrine as finally laid down in Clopton v. Bolton, we think that the first and second pleas were not sufficient to bar this action, and that the demurrers were properly sustained.

The third and fourth pleas assert the title of the defendant in error, to the bill single for $2,000, on the ground of the illegality of the consideration of the assignment. They allege, in substance, that the assignment was made after the first of January, 1863, and that it was made in consideration of the sale of a negro by the assignee to the assignor, and of the payment of a sum of money in Confederate States treasury notes; and that the negro was then a freeman by virtue of the acts of Congress and the proclamations of the President, and that the passing of Confederate notes was illegal.

We are not furnished with the acts of Congress, or the proclamations of the President referred to in the pleas, and we have no access to them where the court is held, and we are therefore unable to state their terms or import. Eeference is made in the brief of counsel, in general terms, to a proclamation said to have been issued by President Lincoln, whereby all the slaves in the State of Mississippi were declared to be free on the first day of January, 1863, and this is relied on to establish the emancipation of the slave in question anterior to the day of the alleged sale.

We believe the most liberal advocate of Federal power has never contended for the constitutional authority of the President to issue such a proclamation, except as a war measure, or that it would have any legal force beyond the lines of actual occirpation of the country by the forces of the United States. It is not necessary for us now to inquire whether the President possesssed any such authority, by virtue of the war-making power, or otherwise, even within his own military lines. For it is not alleged that the county of Carroll, in which this negro remained, and in which this transaction occurred, was at any time during the war within the occupation, or subject to the dominion, of the military power of the United States.

Nor can these pleas derive any support from the subsequent action of the people of Mississippi, in the convention of August, 1865. That convention did not undertake to ratify or confirm the acts of President Lincoln, but themselves, by a new and original provision, embodied in the fundamental law, struck down and abolished the institution of slavery within the State. That act has no retrospective operation, and it is from its date alone that the emancipation of the slaves took effect.

The question of the sufficiency of Confederate money, as the consideration of a contract of this sort, has already been settled by adjudication in tbe case of Green v. Sizer.

The judgment of tbe court below will therefore be affirmed, it being unnecessary to discuss other important questions raised in argument.