Earle v. Harrison , 2 S.C. 432 ( 1871 )

The opinion of the Court was delivered by

Moses, C. J.

The bill states that on the 25th day of December, 1859, Earle, the plaintiff, agreed to sell to Ezekiel Harris, one of the defendants, the land referred to in the pleadings, at the sum of $2,250, who gave his note for the amount and received a bond for the delivery of title when the note was fully paid. Harris went into possession, and some time in May, 1862, having paid a portion of the purchase money, the defendants, Whitaker and Harrison, bought from him, (the said Harris,) his interest in the land at the price of $3,000, and the said Harrison received from him an assignment of the bond, which he held for title from Earle, who assented to the transfer, taking from Whitaker and Harrison their note, payable at one day, for $1,667.67, being the balance duo him on the Harris note. It prays that Harrison and Whitaker be required specially to perform the contract, under which they hold the said bond fur title, by paying the amount due on their note, he being ready and willing to make title, or that,.in default of such payment, the land be sold, and the proceeds applied to the said note, so far as may be necessary for its satisfaction.

The answer of Harris substantially admits the facts as alleged in the bill, except that it states that the sale of his interest in the land was made to Whitaker, and the assignment of the bond for title was to Harrison. Whitaker answers that the transfer of the interest of Harris in the land was to him and Harrison, and says nothing of the bond. Harrison answers, in effect, that the sale was to Whitaker, for whom he joined in the note to plaintiff as surety, and that the bond was assigned to him as collateral security for his liability thereon.

The defence which the Circuit Judge seems to have considered as material, arises out of the answer of Whitaker, to wit, that the purchase was “a Confederate transaction,” and the makers of the note only liable to respond to it as one of that character, and are to be permitted to shew the value of the property at the time they bought of Harris, or, in other words, that the contract was subject to the provisions of the Ordinance of 1865.

The decree proceeds upon the ground that when Harris assigned the bond for title, the plaintiff, by giving his assent thereto, and accepting the note of Harrison and Whitaker for the balance due on that of Harris, so made himself a party to the now contract that he is bound by its results to the same extent as if Harris himself were now complaining against his co-defendants.

This view of the liability of the plaintiff to an abatement of thé amount due on the note now held by him cannot be sustained. He was no party to the agreement between the defendants. Harris could have assigned his bond without his consent, and his mere reception of the note of Whitaker and Harrison, in substitution of the balance due him on that of Harris, can, in no wise, change his rights under his contract with the latter, as to the sum for which he originally agreed to sell to him. The acceptance of the note for the balance unpaid on the Harris note was an act of grace and favor to the other parties, which, by the decree, is made to operate as a wrong and with prejudice to him. He sold in 1859, to be paid in gold or silver coin, or its equivalent representative. He received no additional price as a consideration for the note of Harrison and Whitaker, which ho took for the balance due him by Harris. When in 1862, they agreed to purchase, a sale by plaintiff to a third party, without his consent, would have been a fraud on Harris, to whom he had already contracted to sell, and who, under the bond, could, on payment of the amount due on his note, have compelled the execution of a title to him.

It is difficult to perceive on what principle of law or equity the plaintiff, on the facts before the Court, could be deprived of any of his rights under his sale to Harris. There is no proof that on the subsequent arrangement he agreed to abate anything on the Harris note; so far from it, the defendants, Harrison and Whitaker, actually gave him their note for the full balance duehim, thus refuting the idea of any intention, at the time, to change his original contract as to the sum he was to receive in payment for the land. In no sense can his claim be made subject to the provisions of the Ordinance of 1865, as claimed by the two defendants, and to hold him bound by its operation would be inconsistent with the very purpose it was intended to accomplish.

It is ordered and adjudged that the decree of the Circuit Court, except as to the dismissal of the bill against Harris and the payment of costs, be set aside.

It is further ordered that on the payment, on or before the 15th day of July next, by the said Harrison and Whitaker, to the said plaintiff, of the full amount which may be then due on their note, he, the said plaintiff, do execute title to the said Harrison for the land referred to in the pleadings, and thereupon the said Harrison shall deliver to the plaintiff the Bond for title assigned to him by Harris. On default of payment by the day aforesaid, the Sheriff of Anderson County, after due advertisement, shall proceed, on the sale day in September next, to sell the said land at public outcry for cash, .and shall apply the proceeds, so far as may be sufficient, to the payment of the amount then diie on the note above referred to, the balance, if any, to be paid into Court, subject to its order.

The plaintiff to be at liberty to apply to the Circuit Court for any order necessary to give full effect to the judgment of this Court now pronounced, and the said Whitaker and Harrison to have leave to apply to the said Court for any orders necessary to settle the equities between them arising out of the transaction which forms the subject-matter of the bill.

Willard, A. J., and Wright, A. J., concurred.