Coleman v. Sanderlin , 24 Tenn. 562 ( 1845 )

Turley, J.

delivered the opinion of the court.

Daniel Coleman, on the 13th day of November, 1840, sold to Malachi Sanderlin, a tract of land, for the consideration of four hundred dollars, for which Sanderlin executed his bill single, due on the 1st of January, 1842. Coleman executed his bond to Sanderlin in the penalty of twenty-four hundred dollars, binding himself to convey the land upon payment of the consideration. After this transaction, and before Sanderlin’s bill single fell due, Coleman transferred it. Sanderlin has paid it, and brings this action of assumpsit to recover it back, upon the al-ledged ground, that the title to the land-has not been conveyed to him, and that Coleman has it not to convey.

The only question that need be considered is, whether under these circumstances the action can be maintained. And we think it cannot; but the remedy is on the bond. Sanderlin by executing his note under seal, specifying a day of payment, has fixed his liability therefor at law, and could not defend himself except in equity against its payment, upon the alledged ground of want of title to the land covenanted to be conveyed by Coleman. Not being able to defend himself at law, it would be a strange anomaly to hold, that he might pay the money, and then bring an action of assumpsit to recover it back; thereby doing that indirectly, which the law prohibited him from doing directly.

The court below, not having taken our view of the case, gave judgment against the defendant, which must be reversed, and the case remanded for a new trial.